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NEW YORK STATE DEPARTMENT OF EDUCATION ------------------------------------------ X JOSEPH P. GIARDINA,
Petitioner,
AFFIDAVIT
v.
BRUCE L. DENNIS, Superintendent of Bedford Central Schools, Board of Education, Bedford Central Schools, JAMES ALLOY, Assistant Superintendent for Human Resources, and ROBYN LANE, "Teacher in Charge" (a.k.a. Principal) West Patent Elementary School,
Respondents. ------------------------------------------ X STATE OF NEW YORK )
ss: COUNTY OF WESTCHESTER)
DR. BRUCE L. DENNIS, being duly sworn, deposes and says:
1. I am Superintendent of Schools of the Bedford Central School District, and I submit the within Affidavit in opposition to the request of petitioner Joseph P. Giardina for a stay order which has the effect of removing co-respondent Robyn Lane from her interim position as teacher-in-charge of the District's West Patent Elementary School.
2. I am fully familiar with the facts and circumstances underlying the within appeal, and I believe it to be void of any merit.
3. Petitioner urges the Commissioner of Education to remove co-respondent Lane from a position to which she has not been appointed.
4. Petitioner fails to distinguish between a probationary appointment as Building Principal and a mere temporary. assignment as teach-in-charge which became necessary by virtue of the sudden resignation of the incumbent Principal.
5. Kathleen Tuttle served as Principal of the West Patent Elementary School until on or about July 31, 2002.
6. At its Meeting of July 1, 2002, the Board of Education accepted her resignation, to become effective July 31, 2002.
7. I first became aware of Ms. Tuttle's intention to resign in late June, 2002.
8. The Board of Education traditionally conducts an extensive search before it fills administrative vacancies.
9. The collective bargaining agreement between the Bedford Administrative Supervisory Association and the Board of Education requires that the District post notice of administrative vacancies, so that unit members may become aware of and may apply for such vacant positions; a copy of the relevant contractual provisions is annexed hereto and incorporated herein as Exhibit "1".
10. The collective bargaining agreement between the District and the Bedford Teachers Association has similar notice and posting requirements; a copy of the relevant contractual provisions is annexed hereto and incorporated herein as Exhibit "2"
11. Because of the lateness of the resignation, it was impossible for the Board of Education to follow its customary search procedures before the opening of school in
September but it was nevertheless incumbent upon it to provide far coverage at the Building when school opened.
12. Rather than undertake an expedited search during the summer months, when most school employees are on vacation and after the traditional application period for new administrative positions has concluded, the Board of Education chose to make a temporary assignment in order to afford it sufficient time to conduct a thorough search for Ms. Tuttle's replacement.
13. The Board has just concluded similar searches to replace two other elementary school principals, and the Board did not believe that there were other candidates in the available pool whom it wished to consider for appointment to this additional vacancy.
14. At its Meeting of July 12, 2002, the Board designated co-respondent Lane as teacher-in-charge of the West Patent Elementary School for the period "beginning July 1, 2002 and continuing so long as her services are satisfactory but no later than June 30, 2003, at an annual salary of $97,500.00"; a copy of the resolution is annexed hereto and incorporated herein as Exhibit "3".
15. Ms. Lane was not given a probationary appointment as Principal; indeed, the resolution reassigning her was specifically time-limited to not later than June 30, 2003.
16. Further, Ms. Lane was not designated to be "Principal" but merely "teacher-in-charge", an informal designation connoting "lead teacher" status.
Allegations with respect to timeliness
17. Upon information and belief, the within appeal is untimely.
18_ Co-respondent Lane was desired as "teacher-in-charge" of the West Patent Elementary School by resolution approved by the Board of Education on July 12, 2002.
19. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner be brought within 30 days from the making of the decision or the performance of the act complained of.
20. Although the action from which petitioner appeals occurred on July 12, 2002, petitioner did not commence the within appeal until August 16, 2002, after the expiration of the period of limitation set forth in Section 275.16.
21. Although petitioner argues that his failure to timely commence the within appeal should be excused because "a district's employment of an uncertified principal, if unlawful, is a continuing wrong, subject to complaint at any time", it is clear from the resolution which the Board adopted on July 12, 2002 that respondent did not appoint co-respondent to be acting or interim Principal of West Patent.
22. Any additional salary established for her reassigned duties and responsibilities should be considered as a stipend to her salary as a teacher, augmented to reflect additional duties and responsibilities incident to the position of teacher-in-charge and for additional work performed during July and August, beyond the normal work year for ten-month teachers.
23. Since there is no illegal payment of salary but merely payment of a stipend for additional services, the "continuing wrong" theory is inapplicable, and the appeal is untimely.
Allegations with Respect to Non-joinder and Failure to Serve an Essential Party 24. It is well-settled that persons necessarily affected by a decision of the Commissioner or whose employment rights would be affected thereby are necessary parties to an appeal.
25. While petitioner has named Robyn Lane as a respondent hereto, he has failed and/or neglected to serve her with a copy of the appeal in the manner specified in 8 NYCRR §275.8(b).
26. Since petitioner has failed and/or neglected to make effective service upon co-respondent Lane, the appeal must be dismissed for failure to join an essential party respondent.
27. Similarly, petitioner has named James Alloy, Assistant Superintendent of Schools for Personnel and Staff Development, as a respondent herein, but petitioner has not effectuated personal service upon him in the manner set forth in 8 NYCRR §275.8(b).
28. Consequently, the appeal must be dismissed as against co-respondent Alloy.
Allegations with Respect to Application to Remove School Officers 29. To the extent that the Verified Petition seeks to "remove Assistant Superintendent Alloy from his position in the District for his willful complicity in this
fraud and neglect of (sic) under section 306 of NY Education Law", the appeal must be dismissed.
30. Co-respondent Alloy is a district employee not a district officer, and consequently, he cannot be removed pursuant to the provisions of Section 306 of the Education Law.
31. Furthermore, petitioner has failed and neglected to follow the procedures specified in Part 277 of the Regulations of the Commissioner of Education in that the Verified Petition does not contain the Notice specified in Section 277.1(b) of the Regulations of the Commissioner of Education, nor was co-respondent Alloy personally served in accordance with the provisions of Section 275.8(b) of the Rules of Practice Relating to Appeals to the Commissioner.
32. Substantively, the Verified Petition fails to state any willful violation of law or neglect of duty attributable to Assistant Superintendent Alloy, since it was the Board of Education, not Mr. Alloy, which took the action complained of.
33. A similar application is made in the Verified Petition under Section 306 to remove me from my position as Superintendent of Schools.
34. Such application suffers from the same procedural and substantive deficiencies.
35. The Verified Petition fails to contain the Notice prescribed in Section 277.1(b), it was not personally served upon me as required, and the Petition fails to
state any willful violati0on or neglect attributable to me, since the board itself took the action complained of.
The Appeal is Devoid of Merit
36. When Ms. Tuttle submitted her resignation as Principal of the West Patent Elementary School effective July 31, 2002, I recommended to the Board of Education that it assign Robyn Lane, who had been team leader for the cluster of teachers
assigned to Grades 4-5 at West Patent Elementary School during the 2001-2002 school year, to serve as teacher-in-charge at West Patent, while the District initiated a search for Ms. Tuttle's replacement.
37. Ms. Lane is currently enrolled in an administrative certification program through Columbia University Teacher's College and will likely earn her administrative certification next Spring.
38. As the Commissioner of Education is well aware, most supervisory vacancies are advertised in Spring for appointment effective the following September.
39. If a vacancy arises during the Summer months, the pool of available candidates is very substantially diminished.
40. Having just completed the process, I was of the opinion that we should take the necessary time to conduct a new search, because the pool of applicants had been so diminished through appointments that I was uncomfortable with the available candidates.
Furthermore the district had notice and posting requirements for administrative vacancies in it's various collective bargaining agreements, with which it was required to comply.
42. On my recommendation, the Board of Education reassigned Robyn Lane to be teacher-in-charge of the West Patent Building, pending the results of a search in accordance with District practice.
43. Since Ms. Lane does not yet have administrative certification, she was not appointed as acting or interim Building Principal; to the contrary, she was administratively reassigned by Board action as teacher-in-charge, through a resolution which specifically limited her term of service through no later than June 30, 2003. 44. 1 anticipate that Ms. Lane will hold such position until a search has been completed and the permanent replacement for Ms. Tuttle has been identified and appointed.
45. During this hiatus period, I will serve as Building Principal, and I will sign all State forms requiring the signature of the Building Principal.
46. Because of other duties and responsibilities of the Superintendency, it will not be possible for me to spend my entire day at the West Patent Building.
47. Ms. Lane will serve as lead teacher under my direction, and she will act on my behalf when I am not physically present in the West Patent Building to serve as my liaison with the staff, parents, students and the school community.
48. Her enhanced salary reflects a stipend beyond her teacher's salary for the additional duties and responsibilities which she will perform in her augmented capacity as teacher-in-charge and for services during July and August, when no services are required of ten-month teachers.
49. I consider her reassignment to be consistent with certification requirements, since she will serve under my direction and supervision, and I will serve as Building Principal when the law so requires.
Interim Relief Should be Denied
50. Under Section 276.1 of the Regulations of the Commissioner of Education, a stay of proceedings is appropriate only where the petitioner establishes a clear legal right to the relief requested and where the issuance of a stay is necessary to protect the interests of the parties pending the ultimate determination of the appeal.
51. Upon information and belief, such standard has not been met herein. 52.Petitioner will not suffer irreparable injury if a stay is denied, nor does the "balancing of the equities" test support issuance of a stay.
53. If the Commissioner of Education grants the stay which petitioner has requested, this will have the practical effect of deciding the appeal on the merits.
54. Upon information and belief, stays which have such effect are clearly disfavored.
55. Furthermore, were the Commissioner to issue such a stay, the District
would have to make other arrangements on very short notice in order to provide
leadership at the Building.
56. Upon information and belief, since there is no merit to the Verified
Petition, the request for a stay should be denied.
BRUCE
L. DENNIS
10