Matter of Ronga v Klein

[*1] Matter of Ronga v Klein 2009 NY Slip Op 50563(U) [23 Misc 3d 1103(A)] Decided on March 19, 2009 Supreme Court, New York County Tolub, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 19, 2009
Supreme Court, New York County

In the Matter of the Application of Richard Ronga, Petitioner, For an order Pursuant to Article 78 of the Civil Practice Law and Rules

against

Joel I. Klein, as Chancellor of the New York City School District, ROSER SALAVERT, as rating officer and Community Superintendent, Community School District 3, THOMAS BARNES, as investigator, Office of Special Investigations of New York City Department of Education, CANDICE MCLAREN, as Director of Office of Special Investigations of New York City Department of Education, VIRGINIA CAPUTO, as Director of Appeals and Reviews, and THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents.



114627/08

Walter B. Tolub, J.

This Article 78 Special Proceeding arises out of petitioner's claim that he was improperly denied tenured status after serving the required probationary period as a Principal of a New York City Public School. By this application, petitioner seeks an order (1) declaring that petitioner attained the status of tenured employee; (2) vacating respondents' July 1, 2008 Discontinuance of petitioner's probationary service; and (3) restoring petitioner to the title of "Principal". Petitioner additionally seeks an order terminating the proceedings commenced against under Section 4.3.2 of the Bylaws of the Department of Education and as well as the open investigations instituted by the Office of Special Investigations of the New York City Department of Education.

Background

On July 1, 2005, petitioner, a career educator, was appointed as a probationary Principal assigned to P.S. 166, a K-5 elementary school located within Community School District 3 in Manhattan. Pursuant to Education Law §3012, petitioner's probationary three-year term was set [*2]to expire on June 30, 2008.

During the Spring of 2008, respondents [FN1] claim that some of the parents of students attending P.S. 166 voiced several concerns about petitioner's conduct, including an allegation concerning special education services promised to students at P.S. 166, but never actually provided (Respondents' Exhibit C). In response to these allegations, on April 2, 2009, respondent Roser Salavert, the Community Superintendent for Community School District 3, sent petitioner a letter calling him to appear for an April 4, 2008 conference. (id. Exhibit B).

On April 7, 2008,[FN2] petitioner, accompanied by his Union attorney, attended the meeting with Superintendent Salavert and Mr. Raymond K. Gregory from CSA. The meeting, memorialized in a letter from Superintendent Salavert dated April 18, 2008,[FN3] raised numerous concerns including petitioner's "performance in the area of parent communication and community involvement" and "apparent authoritarian style, deliberate lack of transparency and true communication with parents" which had manifested, according to Superintendent Salavert, in an "environment of intimidation and low teacher morale" (id. Exhibit D). Additionally addressed, but not responded to, was the allegation that petitioner "may have witnessed people requesting signatures" on his behalf, as part of an inappropriate letter writing campaign organized by petitioner during school hours and on school grounds (id.).[FN4]

During the meeting, petitioner indicated that he was working on a detailed plan for improvement. Superintendent Salavert expressed hope that petitioner's plan of action would succeed, and expressed hope for improved results for the next Learning [*3]Environment survey for P.S. 166, noting that the most recent scores were low as compared to similar schools (id.). Petitioner was then advised that he would be observed over the next few weeks, and a follow-up meeting was scheduled for some point after May 7, 2008 (id.).

Respondents continued to receive complaints concerning petitioner's behavior. The subject of the new complaints included both issues previously raised during the April meeting, as well as newly expressed concerns over whether petitioner had been ignoring safety issues and was intimidating school personnel (id. Exhibits G-N). On May 14, 2008, petitioner and Superintendent Salavert met to discuss petitioner's progress. The meeting concluded with Superintendent Salavert issuing petitioner a warning that if he did not substantially improve his communication, management, and judgment/strategic leadership skills as previously identified, he would be in danger of being rated unsatisfactory for the 2007-2008 school year (id. Ex. F).

Towards the end of June, two sets of events transpired which this court deems noteworthy. First, between June 20, 2008 and June 25, 2008, in accordance with Department of Education Requirements, petitioner undertook an investigation of alleged corporal punishment on the part of one of his Assistant Principals, Larissa Vail (Petition, ¶14). Second, and more significant to the instant application, is that during the last week of June of 2008, petitioner's Union attorney and respondents began negotiations over petitioner's immediate resignation as principal of P.S. 166 in exchange for a "satisfactory" rating for the 2007-2008 school year (Respondent's Exhibits O-Q). The court notes that the communications between petitioner's Union attorney and respondent and the express language of the proposed and final versions of the resignation agreement [FN5] make it clear at as of June 27, 2008, respondents did not intend to grant petitioner tenure (id.).

Petitioner's Union attorney affirmatively communicated to respondents that on Friday June 27, 2008, petitioner had agreed to the terms of the proposed resignation agreement and would resign as Principal of P.S. 166, effective July 23, 2008 (id. [*4]Exhibit Q). When petitioner failed to produce a signed resignation agreement, on June 30, 2008, the last day of petitioner's probationary term, respondent issued an email with an attached letter informing petitioner that effective July, 1, 2008, petitioner was being reassigned to the Department of Education's Manhattan Integrated Service Center (ISC) (Respondents' Exhibit R, Petition, Exhibit 4). On July 1, 2008, respondents sent petitioner a letter informing him of the denial of his "Certification of Completion of Probation" as Principal of P.S. 166 had been denied (Respondents' Exhibit T). The letter further informed petitioner that he was entitled to the review procedures set forth under Article VII and Section 4.3.2 of the Bylaws of the New York City Department of Education (id.). Contemporaneously with this letter, petitioner submitted the signed settlement agreement (id. Exhibit P), which was revoked the following day (id. Exhibit U).

On July 7, 2008 respondents issued petitioner a letter reiterating his discontinuance as Principal, and reversion to his last appointed license as an Assistant Principal, effective July 2, 2008 (id. Exhibit V). On August 20, 2008, petitioner was notified by the Office of Special Investigations for the New York City department of Education (OSI) that he was being investigated for "employee misconduct" (Petitioner's Exhibit 25). On September 23, 2008, petitioner was notified that in accordance with Section 4.3.2 of the Bylaws of the New York City Department of Education, a hearing on petitioner's discontinuance and unsatisfactory rating was scheduled for November 12, 2009. On October 20, 2008, OSI again informed petitioner that he was under investigation for "employee misconduct" (Petitioner's Exhibit 27). By Order to Show Cause, petitioner commenced this special proceeding on October 31, 2008, and, as such, the November hearing date was adjourned until December 17, 2008.

Discussion

As with any review of an agency determination, the role of this court is limited to the issue of whether the challenged determination was rationally based, or whether it was arbitrary and capricious or an abuse of discretion (CPLR 7803; Pell v. Board of Education, 34 NY2d 222 [1974]; Chinese Staff and Workers Association v. City of New York, 68 NY2d 359 [1986]; Matter of Soho Alliance v. NY State Liquor Authority, 32 AD3d 363 [1st Dept. 2006]). It is not a vehicle for de novo review (Greystone Management Corp. v. Conciliation and Appeals Board, 94 AD2d 614 [1st Dept 1982], aff'd 62 NY2d 763 [1984]).

In support of his application, petitioner asserts that respondents' decision to deny him tenure is improper because he acquired "tenure by estoppel" as of June 30, 2008 and therefore could only be removed from his post under Education Law §3020-a. Petitioner additionally argues that even if he could be removed [*5]from his position under the provisions cited by respondents, respondents failed to give him proper notice of their intent to deny him tenure under both Education Law §3031 and Department of Education Regulation C-31 2.23. This court disagrees.

Under Education Law §2573, in order to attain tenure as a principal, the employee is required to complete a three-year probationary term of service. That service may be discontinued at any time, and for that matter, for almost any reason during the probationary period (Education Law §2573; see also Brown v. City of New York, 280 AD2d 368, 370 [1st Dept 2001]). The decision to grant or deny tenure however, which is governed by Education Law §3012(2), may not be made until the end of the probationary term (id.). In other words, the probationary term must be completed before the employee can considered for tenure (Hazard v Board of Education, Horseheads Central School District, No. 1, 16 AD2d 481 [3rd Dept 1962]; Matter of High v. Board of Education, Union Free School District No. 7 of the Town of North Hempstead, 169 Misc 98, 101 [Sup. Ct. NY Co. 1938), aff'd, 256 AD 1074 [2nd Dept 1939] aff'd 281 NY 815 [1939]).

In the instant application, it is apparent to this court that contrary to petitioner's claims, petitioner was very much aware that he was in danger of not being awarded tenure as early as April of 2008. He most certainly understood that tenure would not be awarded to him when his legal counsel conveyed to him the proposed stipulation of resignation on June 27, 2008, which petitioner signed. As such, petitioner's claim that he had no notice of the possibility that respondent would deny him tenure is rejected.

Nor has petitioner established that he is entitled to "tenure by estoppel". Tenure by estoppel may only be invoked when a school board accepts the continued services of an administrator, but fails to take the action required to either grant or deny tenure prior to the expiration of the probationary period (Triana v. Board of Ed. of City School District of New York City, 47 AD3d 564,556 [1st Dept 2008); McManus v. Board of Education of Hempstead Union Free School District, 87 NY2d 183 [1995]). Although petitioner in the instant application argues that he did not receive formal notice of his discontinuance from his position until July 1, 2008, the July 1 letter followed on the heels the negotiations for petitioner's resignation, and respondents' notice on June 30, 2008 of petitioner's immediate reassignment, both in location and in title, to the ISC. Inasmuch as it is apparent that petitioner did not serve in the capacity of Principal after June 30, 2008, the last day of his probationary period, petitioner's claim of tenure by estoppel fails (Feldman v. Community School District 32, 231 AD2d 632 [2nd Dept. 1996]).

The only remaining issue for consideration, as conceded by [*6]the parties during oral argument on November 7, 2008, is whether respondents' decision to terminate petitioner from his job was done in bad faith (see, Petitioners' Exhibit 32). Petitioner, in support of his claim, states that his denial of tenure was based solely on complaints lodged by a small percentage of parents, his homosexuality, and his decision to give an unsatisfactory rating to a "politically connected" assistant principal. These claims however, are both conclusory and unsubstantiated, and as such, are insufficient to demonstrate a need for a further hearing on the issue of bad faith (Matter of Thomas v. Abate, 213 AD2d 251 [1st Dept 1995). Furthermore, notwithstanding petitioner's prior evaluations, in the Spring of 1998, petitioner was given written notice that not only were the parents of children attending P.S. 166 concerned with his actions, the Department of Education was not satisfied with petitioner's job performance. Petitioner was given time to correct the deficiencies, and, at the end of that time period, was told that he was still performing unsatisfactorily, and was at risk of receiving an "unsatisfactory" rating for the 2007-2008 year. As a probationary employee, the Department of Education's dissatisfaction with petitioner's job performance alone is a valid ground for termination (Venes v. Community School Board of District 26, 43 NY2d 520, 521 [1978]). Since petitioner in this application was not only provided with reasons for why his employer was dissatisfied with his performance, but also the opportunity to correct these deficiencies, petitioner's claim that he was terminated with bad faith is rejected.

As a final note, this court addresses petitioner's request to stay the investigations pending by OSI to afford him opportunity to retain legal counsel. Although petitioner claims that the investigations are related to his bad faith termination argument, and specifically, the unsatisfactory rating he gave to the assistant principal, there is nothing to substantiate these claims. Inasmuch as petitioner's attorney was contacted regarding the future investigations, and to also set up an interview date, the stay is denied, and the investigation may proceed as planned.

Having considered the balance of petitioner's arguments, it is hereby

ORDERED and DECLARED that the Petition is dismissed and the decision of the Department of Education to deny tenure to petitioner Richard Ronga is remanded to the Department of Education for continuation of the administrative hearing procedures, as delineated in Section 4.3.2 of the Bylaws of the New York City department of Education; and it is further

ORDERED that Respondent Board of Education is to commence the [*7]continuation of said administrative hearing within 60 days of service of this order with notice of entry, and it is further

ORDERED that respondent Board of Education is directed to furnish petitioner with written documentation enumerating the reasons for his termination within 30 days prior the date of said hearing.

This memorandum opinion constitutes the decision and judgment of the Court.

Dated:

____________________________

HON. WALTER B. TOLUB, J.S.C. Footnotes

Footnote 1: For simplicity, the court will introduce each of the respondents individually, but refers to them collectively as "respondents" unless otherwise noted.

Footnote 2: Although not expressly stated, it appears that the original April 4, 2008 meeting date was adjourned.

Footnote 3: According to the April 18, 2008 letter, petitioner declined to have one of respondent Salavert's administrative assistants act as a record keeper of the meeting (Respondent's Exhibit D).

Footnote 4: In pertinent part, the letter reads as follows:It appeared that you were reluctant to accept criticism or acknowledge the existence of allegations against you; you looked at Mr. Gregory and opted not to respond. When I prompted you to respond to these allegations, you proceeded to tell me about your daily routines which include greeting your community. You also indicated that you had "not seen anything unusual" [...] At this point, you requested to meet with your CSA representative outside the meeting room (id.).

Footnote 5: The court notes that the final version of the resignation agreement, which petitioner signed, and then revoked (discussed infra), contains the following language:

10. By entering into this Agreement, Ronga waives all claims against the DOE in any administrative, judicial, or other forum arising out of the unique and particular facts of this Agreement, including any claim that he has attained tenure as a principal by virtue of his continuance in the principal title through July 23, 2008 (Respondents' Exhibit P).