In three separate appeals, Petitioners sought to annul an agreement between the Board of Education of the School District [Board] and its deputy superintendent [DS] providing for the DS to assume the duties of the Superintendent. Petitioners named multiple board members, school officials, and the school attorney [Respondents]. Because the appeals presented similar issues of fact and law, they were consolidated for decision by the Commissioner of Education [See 8 NYCRR 275.18].
DS had agreed, in addition to her current responsibilities, to assume the duties of acting superintendent while the superintendent was on leave of absence. The board then negotiated a “pay differential” with DS to compensate her for these additional duties and the Board retroactively approved payment to the DS in the amount of $200 per day from July 1 through September 3, 2025 [the addendum].
Petitioners contended that the Board lacked authority to compensate DS for her additional services because her contract already required that DS “[s]erve in the absence of the Superintendent as the Chief Administrative Officer of the District” and argued that "any additional compensation constitutes an illegal gift of public funds". Ultimately, Petitioners appealed to the Commissioner of Education, seeking, among other relief, an order precluding the Board from implementing the addendum and the reimbursement of any funds paid to DS already paid to DS pursuant to the addendum.
The Board argued that the appeals (1) must be dismissed for improper service and (2) on the merits as the addendum "appropriately compensated [DS] for services rendered above and beyond the scope of [DS's] existing duties".
Commissioner Rosa, noting that 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 he or she seeks relief, found that Petitioners had not satisfied these burdens.
The Commissioner said she agreed with Respondents that paragraph 11 of DS's contract, which requires her to “[s]erve] in the absence of the Superintendent as the Chief Administrative Officer of the District,” does not preclude DS from receiving additional compensation for such services and found that the provision addressing the "chain of command in the superintendent’s absence" is not meant to cover “prolonged absence[s]” such as that which occurred in the instant situation.
In the words of Dr. Rosa: "As proof, [Respondents] attach a copy of the most recent [DS's] contract", which includes “duties well beyond those set forth” in paragraph 11, including 'budget formulation and administration, pupil course of study and curriculum, public relations, personnel management and labor relations.' Thus, the board did not act arbitrarily or capriciously in compensating [DS] for her service as acting superintendent in summer 2025."
Addressing Petitioners' argument that the additional compensation paid to DS constituted a gift of public funds within the meaning of Article VIII, Section I of the New York Constitution, the Commissioner, citing Appeal of Moss, 59 Ed Dept Rep, Decision No. 17,861, said “This section generally prohibits the expenditure of school district money for the benefit of private parties unless it is in furtherance of a proper public purpose and is undertaken pursuant to a … properly authorized contract under which the municipality receives fair and adequate consideration”. Here, the board received additional consideration in the form of additional duties performed by DS.
The Commissioner concluded her decision by observing that "While the appeals must be dismissed, I admonish the board to ensure that all agreements to provide additional compensation to district employees are transparent and prospective. Retroactive payments create an appearance of impropriety, even where, as here, there is no evidence that such impropriety occurred".
Click HERE to access the Commissioner of Education's decision posted on the Internet.