In an appeal to the Commissioner of Education the aggrieved party has the burden of demonstrating a clear legal right to the relief he or she is seeking
Nicholas Washburn v Ellenville Central School District, Decisions of the Commissioner of Education, Decision #16,368
Nicholas Washburn challenged the termination of his probationary appointment and his denial of tenure by the Ellenville Central School District Board of Education at the end of the third year of his probationary appointment as a physical education teacher.
In response to the superintendent writing to Washburn informing him that she would recommend termination of his services as a probationary teacher effective July 22, 201 at a board to be held on June 22, 2010, Washburn requested “a written statement of the reasons for the superintendent’s negative recommendation.”
The superintendent replied to Washburn indicating that her recommendation was based on his failure to follow certain directives and practices and set forth a number of examples of such omissions.
When the Board terminated Washburn’s probationary appointment effective July 22, 2010, he appealed the Board's decision to the Commissioner of Education.
In his appeal Washburn contended that the reasons for his termination and denial of tenure were “false and pretextual” and asked the Commissioner to annul the Board’s action and to grant him tenure retroactive to June 22, 2010.
The Board, in rebuttal, argued that  Washburn failed to state any procedural violation of Education Law §3031 with respect its terminating his probationary appointment and  that he did not established any basis for granting him tenure retroactively. The Board also claimed that Washburn had failed to exhaust his administrative remedies under the relevant collective bargaining agreement.
As to the Board’s “affirmative defense” that Washburn failed to exhaust his administrative remedy under the collective bargaining agreement, the Commissioner said that “other than this conclusory allegation,” the Board neither supplied any facts nor made any reference to any “applicable provisions of the agreement.” Accordingly, the Commissioner ruled that the Board had not established this defense.
Turning to the merits of Washburn’s appeal, the Commissioner observed that “generally, a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.” Further, said the Commissioner, the aggrieved party “has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which [he or she] seeks relief.”
Although Washburn alleged that the Board’s decision to terminate his probationary employment and deny him tenure violated his right to due process, the Commissioner said that he failed to allege any procedural violation of Education Law §3031 or any other applicable statute. Further, said the Commissioner, the record indicated that the Board complied "in all respects with the statutory procedural requirements for terminating a probationary employee and denying a probationer tenure."
Nor, said the Commissioner, did Washburn establish that he was terminated for a constitutionally impermissible reason or in violation of statute.
Having failed to articulate a clear legal right to the relief requested, the Commissioner ruled that Washburn failed to meet his burden and dismissed his appeal.
The decision is posted on the Internet at:http://www.counsel.nysed.gov/Decisions/volume52/d16368.html