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Saturday, December 5, 2015

Rome Superintendent Jeffrey P. Simons is "Proficient" Says the Board

Jeffrey P. Simons

Rome superintendent receives ‘proficient’ rating from board

Published Nov 30, 2015 at 4:00pm

Rome school district Superintendent Jeffrey P. Simons received an overall rating of “proficient” in the Board of Education’s evaluation for the 2014-15 school year that concluded June 30, the district said today.
Meanwhile, the district said the board and Simons “also wish to clarify any previous comment regarding the status of...Simons’ future employment as follows: Current considerations and discussions between the board and Mr. Simons regarding a contract extension are separate and unrelated to his performance as superintendent of schools.”
Simons and the board felt the clarification should be offered because “there may have been some confusion with the readers of an earlier published account involving an interview with a member of the board that touched on not only the completed evaluation but also the status of discussions or plans for continuing employment of Mr. Simons beyond the expiration of his contract,” the district said.
His contract expires July 31, 2016.
The district’s statements were provided in a letter by Records Access Officer Robert B. Mezza Jr.
He also is the school district’s director of business and finance.
Mezza issued Simons’ evaluation results in response to a New York Freedom of Information Law request that was submitted by the Daily Sentinel on Nov. 10.
Withheld from the issued results was a portion that “included subjective analyses or opinions of individual board members concerning how well or poorly the standards or duties have been carried out or the goals have been achieved in accordance with the rubrics in the (evaluation form) instrument,” Mezza’s letter said.
In addition, the overall final rating document was “redacted in part to eliminate other partial ratings that are taken into consideration in arriving at the final score (proficient),” he said.
Simons received the rating from the board “using a new evaluation system which was adopted this year,” Mezza said.
“Because a different evaluation system is being used, a comparison cannot be accurately made to the previous years’ evaluation ratings,” Mezza adds.
The board previously had agreed to use a new evaluation system from the McREL corporation that both Simons and board members have said would be more comprehensive.
Among other rating categories that were included in the current evaluation forms besides “proficient” were “developing,” “accomplished,” and “distinguished.”
The district’s response did not specify how Simons’ “proficient” rating was ranked in relation to being higher or lower than the other categories.
Using the prior system, Simons’ performance in the previous 2013-14 school year had “exceeded expectations,” according to evaluation results.
Simons became superintendent in August 2007. Under his current contract which expires July 31 next year, his salary was to increase to $164,616 by the 2015-16 year.
The board in September 2011 had voted to extend the contract, which at that time was due to expire July 31, 2013.
Board President Louis Daniello said on Nov. 5 that Simons’ contract remained “a matter of discussion.”
When asked whether he anticipated it would be renewed, he had said “I don’t know which way the board wants to go overall...or Jeff wants to go on it.” Simons on Nov. 4 would not comment when asked about his contract status.
Daniello separately had said on Nov. 4 that Simons’ evaluation was completed over the summer, and that the information would be provided with guidance from the school district’s legal firm; it included “some things that are confidential,” he had said.
The portion of Simons’ evaluation results that was withheld from public release was based on a state law exemption stating that “public agencies...may withheld records which if released would constitute an unwarranted invasion of personal privacy,” Mezza’s letter said.
In addition, “evaluation materials containing opinion regarding performance may also be withheld from disclosure, as such information is not fact nor would it constitute a final agency determination” under the law, his letter said.

Bottom of Form
Appeal of DAWN and JAY KIPPEN from action of the Board of Education of the City School District of the City of Rome regarding the employment of a superintendent and application for the removal of Jeffrey P. Simons as superintendent.
Decision No. 15,919
(May 18, 2009)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Craig M. Atlas, Esq., of counsel

Petitioners challenge the appointment by the Board of Education of the City School District of the City of Rome (“board”) of Jeffrey P. Simons (“Simons”) as superintendent of schools and seek Simons’ removal.  The appeal must be dismissed and the application for removal must be denied.

Prior to August 1, 2007, Simons served as assistant superintendent for curriculum and instruction, then as deputy superintendent in the Rome City School District.  On June 6, 2007 the board appointed him superintendent, effective August 1, 2007.  At the time of this appointment, district regulation 3015.1 required, in pertinent part, that a superintendent in the district “possess ... [f]ull certification as a teacher” and “[c]ertification as a School District Administrator”.

Education Law §3003 requires only that, to be eligible for the position of superintendent of schools, an individual must possess a “superintendent’s certificate”.  Pursuant to §80-2.4 of the Commissioner’s regulations, which is applicable to Simons’ appointment, a “school district administrator” certificate constitutes a superintendent’s certificate within the meaning of §3003.

On February 29, 2008, petitioners submitted a request, pursuant to the Freedom of Information Law (“FOIL”) (Public Officers Law, Article 6) to the State Education Department seeking information regarding Simons’ certification.  On March 25, 2008, petitioners received a response indicating that Simons holds a valid permanent certificate as a School District Administrator and previously held other provisional certificates which have since expired.

Thereafter, petitioners commenced this appeal, challenging the board’s appointment of Simons and seeking his removal.  Petitioners’ request for interim relief was denied.

Petitioners claim that the board’s appointment of Simons as superintendent is improper, as it does not comply with district regulation 3015.1, in that Simons does not possess certification as a teacher.  Petitioners seek Simons’ removal from his position.  The board asserts that the appeal is untimely, is moot and fails to state a claim.  It also maintains that there is no basis for Simons’ removal.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442). 

The board contends that the 30-day time period in which to challenge Simons’ appointment ran from June 6, 2007, the date of his appointment, thereby rendering the appeal untimely.  However, the gravamen of petitioners’ challenge to Simons’ appointment and assertion that the board violated district regulation 3015.1 is that he is not qualified to serve as superintendent because he lacks certification as a teacher, as required by the board’s regulation.  A district’s employment of an unqualified individual, if unlawful, is a continuing wrong, subject to complaint at anytime (Appeal of Boyle, 46 Ed Dept Rep 496, Decision No. 15,574; Appeal of Brown, 39 id. 343, Decision No. 14,255).  Therefore, I will not dismiss the appeal as untimely.

To the extent that petitioners challenge Simons’ appointment as contrary to district regulation 3015.1, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).

The board submits evidence that it revised district regulation 3015.1 on August 13, 2008 to eliminate the requirement that an individual possess full certification as a teacher as a qualification to hold the position of superintendent.  The regulation still requires that an individual possess certification as a School District Administrator.[1]  Petitioners’ challenge to Simons’ qualifications under district regulation 3015.1, therefore, is academic.

Turning to petitioners’ application for Simons’ removal, a member of the board of education or a superintendent of schools may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or superintendent has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Schenk, 47 Ed Dept Rep 375, Decision No. 15,729; Application of Kavitsky, 41 id. 231, Decision No. 14,672).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602;Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioners contend that Simons’ removal is warranted, alleging that he wilfully violated regulation 3015.1.  However, the challenged action – appointment of Simons as superintendent – is a board action.  As such, any obligation to act in compliance with the regulation vests in the board not the superintendent.  Petitioners, therefore, failed to establish any basis for Simons’ removal.

[1]Under the Commissioner’s regulations (8 NYCRR §80-3.10) certification as a School District Leader is also valid for service as a school superintendent.  School District Leader certificates are issued to qualified candidates who apply for such certificates in the educational leadership service on or after September 2, 2007.

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