Petitioner commenced this proceeding seeking a judgment declaring Respondent's July 29, 2009 resolution terminating Petitioner's employment as a probationary elementary principal null and void on the grounds that the determination was arbitrary, capricious, and in violation of applicable statutes and regulations.

Notice Pursuant to Education Law �3031 [*2]

In support of its application, Petitioner asserts that Respondents failed to provide notice that Respondent Superintendent Frank V. Auriemma (hereinafter "Dr. Auriemma") was going to recommend that Petitioner's employment as a probationary principal not be continued beyond Petitioner's first year. Petitioner contends that the June 26, 2009 letter from Dr. Auriemma failed to provide adequate notice pursuant to the applicable statutory provisions mentioned therein. The letter states, in pertinent part, that "I [Dr. Auriemma] will be submitting my recommendation and a resolution to the Board of Education for their review and consideration at the Board of Education meeting on July 29, 2009, which may result in the termination of your probationary period."^[FN1]

In response to Petitioner's submissions, Respondents highlight that the June 26, 2009 letter followed an evaluation dated June 19, 2009 in which Dr. Auriemma expressed "very serious concerns" regarding Petitioner's judgment, professional decision making, and ability to serve as principal.^[FN2] In subsequent correspondence dated July 14, 2009, Dr. Auriemma responded to Petitioner's letter requesting his "...reasons for recommendation the termination of your probationary employment with the District to the Board of Education."^[FN3] This correspondence explicitly identified the nature of Dr. Auriemma's recommendation to the Board of Education regarding Petitioner's continued employment.

New York Education Law Section 3031, provides, in pertinent part, that "...boards of education...shall review all recommendations not to appoint a person on tenure, and, teachers, administrators and supervisors employed on probation by any school district or by any board of cooperative educational services, as to whom a recommendation is to be made that appointment on tenure not be granted or that their services be discontinued shall, at least thirty days prior to the board meeting at which such recommendation is to be considered, be notified of such intended recommendation and the date of the board meeting at which it is to be considered."

"It must be assumed that the Legislature in enacting [Education Law] section 3031 had in mind that the District Superintendent would advise the teacher of the reasons for his recommendation so that in turn the teacher might be able to make a reasonable and logical reply. Once the mandated procedural aspects of the District Superintendent's giving of reasons and either a response is filed or the time has passed, the power of the Board of Education to terminate the employment is not affected by section 3031." Rathbone v. Board of Ed. of Hamilton Central School Dist., Madison, 47 AD2d 172 [1975], affd 41 NY2d 825 [1977]. "[T]he statute was conceived as a procedural device to force the superintendent to lay bare the reasons for his recommendation so that the probationer could ascertain whether any [reasons] were constitutionally or statutorily impermissible." [*3]Merhige v. Copiague School Dist., 76 AD2d 926, 928 [2d Dept 1980] [internal citations omitted].

Correspondence between the parties and their respective counsel subsequent to the June 26, 2009 letter evidences Pettioner's opportunity and election to make a reasonable and logical reply to Dr. Auriemma's recommendation that his probationary employment not be continued. By correspondence dated July 8, 2009, Petitioner's counsel requested "a written statement giving the reasons for your recommendation to the Board of Education..."^[FN4] Such a request is explicitly authorized by Education Law �3031(a) and this request and Petitioner's subsequent reply to the Dr. Auriemma's written statement were made within the timeframes set forth in �3031(a).

Based upon the foregoing, the Court finds that the June 26, 2009 correspondence from Dr. Auriemma to Petitioner satisfied the notice requirements of Education Law �3031.

Petitioner's Claim that Respondents' Actions Were "Arbitrary and Capricious"

Petitioner further asserts that Respondents' actions were arbitrary, capricious, and done in bad faith. In support of this assertion, Petitioner cites feedback he received from parents and staff indicating that he was performing his job in a "completely satisfactory manner" and presents a petition calling for his reinstatement as principal of Lincoln Avenue Elementary School signed by parents of children attending the school.^[FN5]

In response, Respondents contend that "...the petitioner's first year probationary employment was terminated because of his demonstrated lack of judgment as an elementary school principal in performing his administrative duties and in maintaining appropriate interpersonal relations with other administrators and his staff".^[FN6]

"The Court of Appeals defined the arbitrary and capricious' standard in Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County (34 NY2d 222 [1974]), characterizing the standard as relat[ing] to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact'. Arbitrary action is without sound basis in reason and is generally taken without regard to the facts..." Ador Realty, LLC v. Division of Housing and Community Renewal, 25 AD3d 128 [2d Dept 2005] [internal citations omitted]. "In applying the arbitrary and capricious' standard, a court inquires whether the determination under review had a rational basis. Under this standard, a determination should not be disturbed unless the record shows that the agency's action was arbitrary, [*4]unreasonable, irrational or indicative of bad faith'". Halperin v. City of New Rochelle, 24 AD3d 768, 770 [2d Dept 2005].

The Pearl River Board of Education resolution not to continue Petitioner's probationary employment was based upon the recommendation of Dr. Auriemma, which in turn was based upon specific occurrences during Petitioner's first year as principal of Lincoln Avenue Elementary School. Given this, Respondents' action had a rational basis and was neither arbitrary, unreasonable, irrational, nor indicative of bad faith.

Accordingly, Petitioner's application is hereby denied.

Dated:New City, New York

July 2, 2010