Opinion
638004
Decided February 18, 2005.
Stafford D. Ritchie II, Esq., Amherst, New York, Attorney for the Petitioner.
Lindy Korn, Esq. Buffalo, New York, Attorney for the Petitioner.
Hon. Eliot Spitzer, Attorney General of New York State Department of Law, The Capitol, Albany, New York, Attorney for Respondent Richard P. Mills, Commissioner of Education of the State of New York (Jeffrey P. Mans, Assistant Attorney General, of Counsel).
Webster Szanyi, L.L.P. Buffalo, New York, Attorneys for the Respondents Board of Education of the Hamburg Central School District, and Peter G. Roswell, Superintendent of Schools, Hamburg Central School District (Todd M. Schiffmacher, Esq., Of Counsel).
Petitioner challenges respondent Richard P. Mills, Commissioner of Education of the State of New York's determination that petitioner was a probationary employee of respondent Board of Education of the Hamburg Central School District (HCSD) at the time he was terminated and that he was not terminated for improper reasons.
Petitioner bears the burden of establishing that the respondent Mills' determination was rendered in violation of lawful procedure, was affected by an error of law or was arbitrary, capricious or an abuse of discretion ( Catlin v. Sobol, 77 NY2d 552, 561; Matter of Lilley v. Mills, 274 AD2d 644). Respondent Mills found that petitioner was still a probationary employee at the time he was terminated because respondent HCSD had only made a "conditional appointment" and rescinded that status prior to the date that the conditional appointment became permanent ( Matter of Remus v. Tonawanda Board of Education, 96 NY2d 271, 276-278). Petitioner urges that respondent Mills was wrong in finding that he was still a probationary employee at the time in question and that he was in fact a tenured member of the faculty and therefore not subject to summary dismissal. Although petitioner urges that he was no longer probationary because prior to his termination respondent HCSD had offered him a permanent appointment, with a statement of the salary and he had accepted the permanent appointment ( Matter of Weinbrown v. Board of Education of Union Free School District No 15, Town of Hempstead, 28 NY2d 474), the record demonstrates that petitioner was neither offered an unconditional appointment nor informed what his salary would be. As the proposed appointment was conditioned by the effective date and there was no salary offered, the Court finds that respondent Mills' decision that petitioner was a probationary employee at the time of his termination is not erroneous as a matter of law, arbitrary, capricious or an abuse of discretion ( Matter of Remus v. Tonawanda Board of Education, 96 NY2d 271).
While in that probationary status, there is no question that petitioner could be "dismissed for almost any reason, or for no reason at all" ( Matter of Swinton v. Safir, 93 NY2d 758, 762; Matter of Venes v. Community School Bd. of Dist. 26, 43 NY2d 520, 525). Petitioner could be terminated without a hearing or a statement of reasons provided the termination was not in bad faith, or for a constitutionally impermissible or illegal purpose ( Matter of York v. McGuire, 63 NY2d 760, 761; Matter of Williams v. Commissioner of Office of Mental Health of State of New York, 259 AD2d 623). Thus, petitioner has no right to challenge the termination by way of a hearing, this proceeding, or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason ( Matter of Swinton v. Safir, supra; Matter of York v. McGuire, 63 NY2d 760, 761).
Judicial review of the dismissal is limited to a determination of whether the dismissal was the product of "bad faith", unconstitutional or illegal. Petitioner's effort to suggest that he was terminated for reasons other than the stated reasons that he was engaging in inappropriate touching of young female students in his care and suspicious behavior with female staff on school grounds, is insufficient to meet his burden of establishing such bad faith or illegal reasons ( Matter of Williams v. Commissioner of Office of Mental Health of State of New York, supra; Matter of Leskow v. Office of Court Administration, State of New York, Unified Court System., 248 AD2d 1004). Such conclusory allegations of bad faith based on speculation would be insufficient to demonstrate that the challenged determination was "arbitrary and capricious" much less meet the applicable burden of raising and proving "bad faith" in his termination ( Matter of Leskow v. Office of Court Administration, State of New York, Unified Court System., supra; Matter of Thomas v. Abate, 213 AD2d 251, 252).
Accordingly, the petition is dismissed with $100 costs and the relief requested therein is in all respects denied.
This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the Attorney General. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.
SO ORDERED.