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Some elements to consider in an appeal to the Commissioner of Education

Some elements to consider in an appeal to the Commissioner of Education
In the Matter of Dania Hall and the Board of Education of the North Bellmore Union Free School, Decision of the Commissioner of Education No. 15,543

The Commissioner of Education dismissed Dania Hall?s appeal challenging the Board of Education?s decision to deny her tenure and terminate her employment.

Hall commenced serving as a probationary music teacher on September 1, 2002. On April 1, 2005, the superintendent gave Hall a letter dated March 31, 2005, notifying her that he would recommend termination of her probationary employment at Board of Education?s May 5, 2005 meeting. Normal procedures were followed after Hall was given the Superintendent?s letter whereby the Superintendent provided the reasons for his recommendation in writing and Hall submitted a written response to the Superintendent?s letter setting out the reasons for his decision. Ultimately, the Board voted to terminate Hall effective June 30, 2005 at its May 5, 2005 meeting.

On May 18, 2005, Hall filed a contract grievance asserting that she had not been given due process regarding her termination because district did not give her the 90 days pre-termination notice required under the relevant collective bargaining agreement.

Accordingly, Hall argued, she had acquired tenure by estoppel. The superintendent denied Hall?s grievance and the Commissioner noted ?It appears from the record that the [North Bellmore Teachers] Association did not pursue the grievance any further.?

In considering Hall?s appeal, the Commissioner initially addressed a number of procedural issues that may prove instructive to those submitting, or responding to, an appeal to the Commissioner:

1. Section 275.5 of the Commissioner?s regulations 8 NYCRR 275.5] requires that all pleadings in an appeal to the Commissioner be verified.* If a petition is not properly verified, the appeal must be dismissed. As Hall?s petition filed with the Commissioner?s Office of Counsel included the required verification, the Commissioner rejected the school district?s motion to dismiss her appeal on the grounds that if lacked such verification.

2. The Commissioner said that the scope of Hall?s reply to the District?s answer to Hall?s appeal is impermissible. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer. The reply is not meant to buttress any allegations in Hall?s petition or to belatedly add assertions that should have been in the petition. Accordingly, in reviewing Hall?s reply the Commissioner said ?I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth [by the district] in the answer.?

3. In response to Hall?s ?demand for money damages,? the Commissioner said that such a demand is improper. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.

4. Hall, in her letter transmitting her reply, requested ?certain documents be obtained from [the district]? by the Commissioner. Rejecting this request, the Commissioner noted that ?An appeal to the Commissioner is appellate in nature and does not provide for investigations.?

5. After filing her appeal, Hall submitted additional exhibits consisting of photographs and a student e-mail. The Commissioner noted that ?Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).? As Hall did not seek prior permission to submit the documents, nor, said the Commissioner, ?does it appear that the photographs were unavailable to her at the time she submitted her petition, the additional exhibits have not been accepted for consideration.?

6. As to Hall?s ?memorandum of law,? the Commissioner said that such a memorandum should consist of arguments of law and may not be used to add belated assertions or exhibits that are not part of the pleadings. Accordingly, the Commissioner only considered Hall?s memorandum of law ?to the extent that it contains legal argument.?

Turning to the merits of Hall?s appeal, the Commissioner said that ?a board of education has the unfettered right to terminate a probationary teacher?s employment for any reason unless the employee establishes that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.?

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief. Although Hall disagreed with the basis for the decision to terminate her services, the Commissioner found that she did not allege or establish that the district terminated her employment ?for a constitutionally impermissible reason or in violation of a statutory proscription.? Thus, Hall has failed to meet her burden of proof.Finally, the Commissioner considered Hall?s claim regarding the district?s compliance with the notice requirements of the collective bargaining agreement. He concluded that the issue was not properly before him.

In the words of the Commissioner:

"A school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter unless the employee can show that the union breached its duty of fair representation. Hall has not alleged that the union breached its duty of fair representation. Moreover, the record indicates that [Hall] wished to go forward to the next step of the grievance process but the union apparently determined not to do so. A decision by a union not to further pursue a grievance, by itself, does not constitute unfair representation. "

* The document must be attested to before a notary public, commissioner of deeds or another authorized by law to witness such documents.

Full post as published by New York Public Personnel Law on March 25, 2010 (boomark / email).