In this ultimate of several appeals to the Commissioner of Education, Petitioner contends that certain officials of a BOCES [Respondents] should be removed from their respective positions because, among other reasons, they willfully disobeyed a decision of the Commissioner of Education.
The Respondents contended that the petition is moot because Petitioner:
[1] Was earlier restored to the payroll and paid all back wages; and
[2] Respondents had not engaged in a willful violation of law or neglect of duty because they generally acted upon advice of counsel.
The instant appeal, reported as Ed Dept. 18,347, arises out of the events described in appeals to the Commissioner reported, respectively, as 62 Ed Dept Rep, Decision No. 18,147 and 62 Ed Dept Rep, Decision No. 18,211.
In brief, Respondents terminated Petitioner’s probationary appointment. In the appeal that followed the Commissioner of Education found that the three stated reasons advanced by Respondents for terminating Petitioner were “too vague to allow [Petitioner] to ascertain whether any of the reasons were constitutionally or statutorily impermissible" and remanded the matter to the Board.
The Commissioner ordered, among other things, that the district superintendent resubmit her recommendation with “appropriate specifics of the reasons therefor.” The Commissioner also directed the Board to make a new decision regarding the proposed discontinuance of Petitioner’s probationary appointment.
In the instant application, Petitioner contended that Respondents should be removed because, among other reasons, they willfully disobeyed the Commissioner's decision in Decision No. 18,211. Petitioner also argues that the Superintendent improperly denied a request to discuss her circumstances in executive session. For relief, Petitioner requests the removal of all named Respondents and an award of costs and fees.
Respondents contend that the petition is moot because Petitioner was restored to the payroll as of January 3, 2023 and paid all back wages as of January 13, 2023. Respondents additionally contend that they have not engaged in a willful violation of law or neglect of duty because they generally acted upon advice of counsel.
The Commissioner opined that the crucial question in the instant application is whether any Board member understood that Petitioner was not going to be paid or reinstated while BOCES' attorneys prepared and filed a judicial appeal. Noting that the record does not provide a clear answer, the Commissioner declined to remove any members of the Board, explaining that in this instance "The practical responsibility for implementing [the Commissioner's] decision lay with the District Superintendent and BOCES staff, not the [Board]."
The Commissioner also noted that to the extent board members receive legal advice concerning an issue, board members who act on such advice of counsel lack the requisite willfulness to warrant removal from office unless no reasonable person could have believed the advice to be lawful. The Commissioner opined "Any legal advice justifying [the Board Members'] actions would not, in [her] view, meet this demanding standard."
This, said the Commissioner, does not mean that she condoned Respondent’s conduct as they failed to cite any legal authority for the proposition that it was entitled to delay implementation of the Commissioner's earlier decision [see Decisions of the Commissioner Decision No. 18,211]. Further, in the words of the Commissioner, "the evidence in the record suggests that BOCES did not implement the decision in an attempt to bolster its case for temporary relief in the judicial appeal.*
In the words of the Commissioner: "This was improper. Petitioner had a legal right to return to the classroom, with pay, within a reasonable time after issuance of my decision [No. 18,211]. Not only did BOCES fail to do this, but it did not clearly communicate with [Petitioner] about her status for over a month. And, even then, counsel for BOCES only did so in response to [Petitioner’s] inquiry 'about the process for [her] reinstatement, backpay, etc.' This exceeded any reasonable period necessary to implement decision and deprived [Petitioner] of work, and pay, for over a month. I remind BOCES that, absent a judicial order, it must implement all orders of the Commissioner, even those with which it disagrees (see Education Law §§ 306, 310, 311)."
* In an affidavit submitted with this appeal, counsel for BOCES indicated that she "spoke with outside counsel ... and 'expressed concern that the time lapse' i.e., filing the judicial appeal a few weeks after [the Commissioner's Decision No. 18,211] would affect the request for a stay.”
Click HERE to access the Commissioner's ruling in Decisions of the Commissioner Number 18,347.