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Appointing authority, rather than the appointee, responsible for determining if the individual is qualified for the appointment

Appointing authority, rather than the appointee, responsible for determining if the individual is qualified for the appointment
Appeal of Dawn And Jay Kippen from action of the Board of Education of the City School District of the City of Rome regarding the employment of a superintendent and application for the removal of Jeffrey P. Simons as superintendent. Decisions of the Commissioner of Education No. 15,919

The Kippens challenged the challenged the appointment of Jeffrey P. Simons as superintendent of schools of the Rome City School District and asked the Commissioner of Education to remove him from the position.

Simons had served as assistant superintendent for curriculum and instruction, then as deputy superintendent in the Rome City School District. On June 6, 2007 the board appointed him superintendent, effective August 1, 2007.

At the time of this appointment, Rome's District Regulation 3015.1 required, in pertinent part, that a superintendent in the district ?possess ... [f]ull certification as a teacher? and ?[c]ertification as a School District Administrator?.* Although Simons held a ?superintendent?s certificate,? he did not hold ?full certification as a teacher? at the time the board appointed him as the school superintendent.

One of the arguments advanced by the Kippens in their appeal was that ?Simons? removal is warranted ? [as] ? he willfully violated Regulation 3015.1. However, said the Commissioner, the challenged action ? appointment of Simons as superintendent ? is a board action.

Accordingly, "any obligation to act in compliance with the regulation vests in the board not the superintendent." Thus, said the Commissioner, the Kippens ?failed to establish any basis for Simons? removal? on the basis that "he willfully voilated Regulation 3015.1."

* Under the Commissioner?s regulations (8 NYCRR §80-3.10) certification as a School District Leader is also valid for service as a school superintendent. School District Leader certificates are issued to qualified candidates who apply for such certificates in the educational leadership service on or after September 2, 2007. The decision also notes that the school board subsequently amended its regulations, rescinding the requirement that the school superintendent be a ?fully qualified teacher.?

The Commissioner's decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume48/d15919.htm

Full post as published by New York Public Personnel Law on June 12, 2009 (boomark / email).