Termination of an employee serving in an acting capacity

Termination of an employee serving in an acting capacity Appeal of Johnston and the Board of Education of the Hempstead Union Free School District, Commissioner of Education Decision No. 15,443, Education Law §1711(3) provides that a board of education of a union free school district may appoint a superintendent of schools and enter into a contract of employment with that individual for a period of not less than three and not more than five years. After the school board unilaterally terminated its then Superintendent, Nathaniel Clay, in October 2004, the board appointed Johnston to the position of Superintendent and she and the board signed a five-year contract of employment. However, the board's action with respect to its termination of Clay was determined to constitute an unlawful breach of his contract with the district. As a result, Clay was reinstated to his former position by the board's adopting resolutions providing for his reinstatement to his former position. The board then adopted a resolution suspending Clay from the position pending "a hearing." It next appointed Johnston to serve as acting superintendent. Ultimately, the board approved a resolution terminating Johnston from her position of acting superintendent effective July 12, 2005. The Commissioner ruled that the board's action reinstating Clay to his former position nullified Johnston's appointment as superintendent as well as the five-year contract of employment the board and she had signed. Finding that there was never any subsequent resolution by the board appointing Johnston as superintendent, nor any corresponding new employment agreement, the Commissioner ruled that Johnston served as acting superintendent without a contract until her termination and thus was not entitled to "contractual due process prior to termination." In addition, the Commissioner concluded that based on the record before him, Johnston failed to demonstrate that she had a clearly implied promise of continued employment. The Commissioner noted that the board had appointed Johnston to serve as the school district's acting superintendent by resolution. This resolution specifically indicated that she was to serve as acting superintendent "pending the rendition of a decision by the Board of Education on the charges [brought against Clay], or the expiration of the period of [Clay's] Employment Agreement on February 28, 2005, whichever shall occur earlier." In view of this, the Commissioner concluded that the resolution appointing Johnston to the position as "acting superintendent" did not provide her with any assurance of continued employment once either one of conditions set out in the resolution was satisfied. Johnston continued to serve as the district's acting superintendent for a period of time beyond the terminal dates or events set out in the resolution appointing her to the position. Her continuing to serve as acting superintendent, in the words of the Commissioner, "does not clearly evince an expectation of continued employment that would invoke the fundamental principles of due process prior to termination."

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