Sunteți pe pagina 1din 130

STATE OF NEW YORK

STATE EDUCATION DEPARTMENT


OFFICE OF EMPLOYER EMPLOYEE RELATIONS
______________________________________________________________

In the Matter of the

DISCIPLINARY CHARGES BROUGH PURSUANT TO SECTION


3020a of the Education Law, by the Williamsville Central School District,

Petitioner,

-against- Decision of the Hearing Officer


John T. Trela

(SED #26,284)
Kim A. Kirsch, as a Tenured Assistant Superintendent
For Human Resources,

Respondent.

Pursuant to Section 3020a of the Education Law, the undersigned was selected

by the parties as hearing officer on September 13, 2016 to hear and make findings

regarding charges (JX-1)1 against Respondent (hereinafter Respondent) preferred by

the District (District, or Petitioner or Employer). The undersigned is the second

hearing officer in this matter and was selected after the first hearing officer Paul Caffera

was unable to complete his obligations. After Mr. Caffera held some 29 days of

hearing, multiple hearing days were continued to be held by the undersigned between

September 15, 2016 and March 21, 2017 at the Williamsville Central School District

Offices, in Williamsville, New York. A record of all proceedings which generated 6,200+

pages of transcript was taken by a court reporting service and provided to all parties

1
Letters DX, RX or HO, "JX" followed by numbers in parenthesis refer to District, Respondent
Hearing Officer and Joint Exhibits entered into the record, which are listed in the Transcripts of Hearing
Tr.

1
hereto after each respective hearing date. The undersigned was provided with

transcripts of the hearings conducted by Hearing Officer Caferra, as well as all exhibits

previously received by him into this record for study. That entire file therefore continued

to be part and parcel of this matter. The parties stipulated to the record(s) received by

the previous hearing officer. The last day of hearing was held on March 21, 2017 and

thereafter the parties addressed certain exhibits submitted into the record of the

proceeding during conference calls with the undersigned on April 3, 2017 and April 12,

2017 TR 683 6254.

The parties also stipulated to extend the time limits set forth in Education Law

and related regulations for submission of proof and completion of hearings to accurately

reflect the conduct and completion of the proceedings. Because of the extraordinary

circumstances involved in this matter, well beyond the control of the parties, the

stipulation was approved by the undersigned. Final closing briefs consisting of over 150

pages each were uploaded to TEACH on May 24, 2017 and also provided to the

undersigned hearing officer via electronic copies at that time. Hard copies were

subsequently provided and exchanged. The record was closed on May 24, 2017 after

final closing statements were received.

Matthew VanVessem, Esq. and Sean Bitter, Esq. appeared on behalf of the

District, and Michael Starvaggi, Esq., appeared on behalf of Respondent. Respondent

was present at each of the hearings, as was, Superintendent of Schools, Dr. Scott G.

Martzloff.

2
During each day of hearing the parties were provided the opportunity to present

their respective proofs, witnesses, arguments and exhibits into the record, as well as the

right to cross-examination each witness.

3
General Background Information

Respondent in the instant matter, is employed by the Williamsville Central School

District as Assistant Superintendent of Human Resources and reports directly to the

Superintendent of Schools (D-8). Respondent has been employed in this capacity since

the 2007 school year and is a member of the District Leadership Team along with three

(3) other Assistant Superintendents and the Chief School Officer the Superintendent.

Respondents employment status is covered for disciplinary/discharge pursuant

to Education Law, Section 3020a of the State of New York. By correspondence dated

December 10, 2014, Respondent was advised that at a meeting in Executive Session,

the Board of Education voted that probable cause existed to bring disciplinary charges

against her. The Statement of Charges stated that the maximum penalty which will be

imposed if found guilty of the charges would be termination from that position in the

District. The charges approved by the Board are dated December 8, 2014.

There are 5 categories of charges preferred, with 113 separate specifications:

Charge 1: Incompetence with 29 specifications.


Charge 2: Misconduct, with 24 specifications.
Charge 3: Neglect of duty, with 27 specifications.
Charge 4: Insubordination with 20 specifications.
Charge 5: Conduct unbecoming an Assistant Superintendent
with 13 specifications.

The charges fall in one of three (3) categories condensed into 38 specifications

because of duplication of the same charge in the categories. They cover: 1. Breaching

her loyalty to the Superintendent and undermining him; 2. Mismanaging the Human

Resources Offices; and, 3. Failing to perform the duties of her position. The charges are

listed herein below in original form.

4
Upon receipt of said charges Respondent exercised her right pursuant to

Education Law, Section 3020a, and demanded a public hearing before an impartial

hearing officer which is the subject of this instant matter.

CHARGES AND SPECIFICATIONS

CHARGE 1: INCOMPETENCE (Specifications 1-29).

Specifications

1. In or around July 2013 Dr. Kirsch was asked to create a staffing


template for class size during the 2013 2014 which she never
provided even though the system existed and had been utilized in prior
years by the District.

2. On or about September 24, 2013 Dr. Kirsch was asked to provide to


the Superintendent a teacher attendance report which she never
provided.

3. In or around October 2013 Dr. Kirsch failed to institute plans objectives


and/or recommendations of the Superintendent resulting in a delay in
setting up a video surveillance camera to investigate criminal
wrongdoing by an employee and potentially jeopardizing student
safety.

4. On or about April 1, 2014 Dr. Kirsch was asked to provide a report on


the Districts Driver Education Program which she never provided.

5. On or about April 8, 2014 Dr. Kirsch was asked to review and provide
recommendations concerning substitute teacher training and the lack
of sufficient substitutes which she never provided even though it was a
major concern and a well-known problem for the District.

6. On or about May 1, 2014 Dr. Kirsch was asked to provide report an


extracurricular activities at District Schools which she never provided.

7. On or about June 26, 2014 Dr. Kirsch was asked to provide a report
concerning the physician who had a service contract with the District
which she never provided.

5
8. On or about June 30, 2014 Dr. Kirsch was asked to report to the
Superintendent on a payroll problem impacting dozens of teachers and
failed to respond to or advise the Superintendent on a timely basis.

9. On several occasions during the 2013 2014 School year Dr. Kirsch
was asked to provide staff reports of District personnel which she
never provided.

10. On several occasions during the 2013 2014 School year Dr. Kirsch
was asked to conduct an analysis of staffing scenarios to provide focus
for District budgeting and the budget process which she never
provided.

11. On several occasions during the 2013 2014 School year Dr. Kirsch
was asked to provide staffing data and related comparative information
which she never provided.

12. During the 2013 2014 School year Dr. Kirsch failed to keep the
Superintendent fully informed and abreast of labor and personal
concerns and of her dialogue with the Districts unions and/or
employees in a matter involving a teacher transfer, even though this
was a matter of major concern to the District.

13. During the 2013 2014 School year Dr. Kirsch failed to achieve
resolution of labor and personnel complaints and concerns raised by
the Districts unions and by its employees generally including reaching
a Memorandum of Agreement with the Williamsville Teachers
Association on a stipend for employee work.

14. During the 2013 2014 School year Dr. Kirsch failed to commence or
conduct an investigation into possible malfeasance by a teacher in the
District even though it was brought to her attention that the teacher
may be receiving pay and benefits to which the teacher was not
entitled.

15. During the 2013 2014 School year Dr. Kirsch was asked to gather
information and provide a report and recommendation concerning
employee health insurance plan options to evaluate cost savings
during ongoing bargaining with various unions which she never
provided.

6
16. During the 2013 2014 School year Dr. Kirsch forwarded by way of
email various communications about confidential District matters
(including but not limited to matters concerning union and personnel
matters with the Williamsville Teachers Association) to a private non-
District email address in violation of District policies.

17. During the 2013 2014 School year on more than one occasion Dr.
Kirsch had on authorized communications about confidential District
matters and information with various persons including the leader of
the Williamsville teachers Association and the Williamsville
Administrators Association including disclosing District information
regarding a teacher grievance and an investigation into the conduct of
District personnel.

18. Dr. Kirsch failed to manage the Department of Human Resources in a


proper manner causing substantial discontent and conflict among
employees in the Human Resources Department.

19. Dr. Kirsch failed to manage the Department of Human Resources in a


proper manner causing employees to leave the Human Resources
Department based on her actions and inactions as the Departments
leader.

20. Dr. Kirsch failed to manage the Department of Human Resources in a


proper manner by failing to or implement a transition plan for
employees who left or retired which negatively impacted the ability of
employees to complete essential tasks.

21. Dr. Kirsch failed to manage the Department of Human Resources in a


proper manner by failing to communicate with the staff regarding
assigned duties and responsibilities which negatively impacted
employee morale.

22. Dr. Kirsch failed to interact with staff and to correct interpersonal
problems occurring in the Department of Human Resources.

23. Dr. Kirsch failed to maintain and update the TEACH database
concerning the reporting to New York State with regard to individual
teacher development hours jeopardizing teacher certifications for every
probationary teacher in the District.

7
24. Dr. Kirsch failed to properly verify or manage the Districts payroll
functions and processes which resulted among other things in an
overpayment of approximately $250,000 to a taxing authority of the
District.

25. Dr. Kirsch failed to timely conduct and complete a job offer and an
interview of a teacher to fill a position for a brand-new class.

26. Dr. Kirsch failed to address problems with substitute teacher shortages
and to prepare or implement a plan or program to address substitute
teacher shortages in the District even though this was a well-known
problem for the District raised by different stakeholders.

27. Dr. Kirsch failed to create a staffing template on WITS even though
she had been directed to do so.

28. Dr. Kirsch failed to plan any staff development for Assistant Principals
or other administrators to assist with succession planning even though
she had been directed to do so.

29. Dr. Kirsch committed numerous mistakes in submissions to the Board


of Education.

CHARGE 2: MISCONDUCT (Specifications 1-24)

1. In or around July 2013 Dr. Kirsch was asked to create a staffing template
for class size during the 2013 2014 which she never provided even
though this system existed and had been utilized in previous years by the
District.

2. On or about September 24, 2013 Dr. Kirsch was asked to provide to the
Superintendent a student attendance report which she never provided.

3. On or about April 1, 2014 Dr. Kirsch was asked to provide a report on the
Districts driver education program which was never provided.

4. On or about April 8, 2014 Dr. Kirsch was asked to review and provide
recommendations concerning substitute teacher training and the lack of
sufficient substitutes which was never provided even though this was a
major concern and well-known problem for the District.

8
5. On or about May 1, 2014 Dr. Kirsch was asked to provide a report on
extracurricular activities at District Schools which she never provided.

6. On or about June 26, 2014 Dr. Kirsch was asked to provide a report
concerning physician who had a service contract with the District which
was never provided.

7. On or about June 30, 2014 Dr. Kirsch was asked to report to the
Superintendent on the payroll problem impacting dozens of teachers it
failed to respond to or otherwise advise the Superintendent on a timely
basis.

8. On several occasions during the 2013 2014 School year Dr. Kirsch was
asked to conduct an analysis of staffing scenarios to provide focus for
District budgeting and the budget process which she never provided.

9. On several occasions during the 2013 2014 School year Dr. Kirsch was
asked to provide staffing data and related comparable information which
was never provided.

10. During the 2013 2014 School year Dr. Kirsch failed to commence or
conduct an investigation into potential malfeasance by a teacher in the
District even though it was brought to her attention that the teacher may
be receiving pay and benefits to which the teacher is not entitled.

11. During the 2013 2014 School year Dr. Kirsch was asked to gather
information and provide a report and recommendation concerning
employee health insurance plan options during ongoing bargaining with
various unions which she never provided.

12. During the 2013 2014 School year Dr. Kirsch forwarded the email
various communications about confidential District matters (including but
not limited to matters concerning the union and personal matters with the
Williamsville Teacher Association to a private non-District email address in
violation of District policies.

13. During the 2013 2014 School year and thereafter Dr. Kirsch retained
confidential District information and data at a private non-District all
location in violation of a specific directive.

14. During the 2013 2014 School year on more than one occasion Dr.
Kirsch had unauthorized communications about confidential District

9
matters and information with various persons including the leader of the
Williamsville Teachers Association and the Williamsville Administrators
Association, including disclosing District information regarding a teacher
grievance and an investigation into the conduct of District personnel.

15. During the 2013 2014 School year Dr. Kirsch failed to implement the
plans objectives recommendations of the Superintendent to modernize the
Department of Human Resources.

16. On or about January 24, 2014 Dr. Kirsch attempted to circumvent


Superintendent Martzloff and give access to the Districts computer email
investigate module to another employee without seeking or obtaining
proper authorization from the Superintendent.

17. During the 2013 2014 School year Dr. Kirsch did not seek or receive
authorization from the Superintendent to obtain access to the Districts
computer email investigate module.

18. Dr. Kirsch made false misleading and unsupported allegations regarding
the Superintendents access to the Districts email system to various
persons including the leader of the Williamsville Teachers Association and
the Williamsville Administrators Association.

19. Dr. Kirsch revealed that the Superintendent gained access to the Districts
email system to various persons including the leader of the Williamsville
Teachers Association and the Williamsville Administrators Association
even though she lacked the authority to do so under District policies and
jeopardized the investigation of a personnel matter.

20. In or around June 20, 2014 Dr. Kirsch failed to implement and underlined
the recommendations of the Superintendent concerning the grievance
filed against the District by the Williamsville Teachers Association
including advising an employee and/or the Williamsville Teachers
Association that she did not support the District concerning a grievance
filed by the WTA.

21. By or through Dr. Kirschs relationships with the president of the


Williamsville teachers Association and other District personnel and
representatives she sought to thwart the Superintendent his authority
objectives and/or recommendations.

10
22. On more than one occasion in June 2014 Dr. Kirsch met with various
employees of the District concerning alleged employment issues including
the Districts Assistant Superintendents and the leaders of the Williamsville
Teachers Association and the Williamsville Administrators Associations in
an effort to elicit complaints about personnel and work matters concerning
the Superintendent without basis or foundation and to undermine the
authority and position of the Superintendent negatively impacting the
Districts goals and objectives and severely compromising relations and
negotiations with these groups.

23. Dr. Kirsch failed to create a staffing template on WITS even though she
had been directed to do so.

24. Dr. Kirsch failed to plan any staff development for Assistant Principals or
other administrators to assist with succession planning even though she
had been directed to do so.

CHARGE 3: NEGLECT OF DUTY (Specifications 1-27)

1. In or around July 2013, Dr. Kirsch was asked to create a staffing template
for class during 2013 2014 which she never provided even though this
system existed and had been utilized in prior years by the District.

2. On or about September 24, 2013 Dr. Kirsch was asked to provide to the
Superintendent a Teacher Attendance Report which she never provided.

3. In or around October 2013 Dr. Kirsch failed to implement the plans


objectives and/or recommendations of the Superintendent, resulting in a
delay in setting up video surveillance camera to investigate criminal
wrong-doing by an employee and potentially jeopardizing students safety.

4. On or about April 1, 2014 Dr. Kirsch was asked to provide a report on the
Districts driver education program which she never provided.

5. On or about April 8, 2014 Dr. Kirsch was asked to view and provide
recommendations concerning substitute teacher training and lack of
sufficient substitutes which she never provided even though this was a
major concern and a well-known problem for the District.

6. On or about May 1, 2014, Dr. Kirsch was asked to provide a report on


extracurricular activities at District schools which she never provided.

7. On or about July 26, 2014, Dr. Kirsch was asked to provide a report
concerning a physician who had a service contract with the District which
she never provided.

11
8. On or about June 20, 2014 Dr. Kirsch was asked to report to the
Superintendent on a payroll problem impacting dozens of teachers yet
failed to respond to or advise the Superintendent on a timely basis.

9. On several occasions during the 2013 2014 School year, Dr. Kirsch was
asked to provide staffing reports of District personnel which she never
provided.

10. On several occasions during the 2013 2014 School year, Dr. Kirsch was
asked to conduct an analysis of staffing scenarios to provide focus for
District budgeting in the budget process which she never provided.

11. On several occasions during the 2013 2014 school year Dr. Kirsch was
asked to provide staffing data and related comparative information which
she never provided.

12. During the 2013 2014 school year, Dr. Kirsch failed to keep the
Superintendent fully informed and abreast of labor and personal concerns
and of her dialogue with the District unions and/or employees including a
matter involving a teacher transfer, even though this was a matter of major
concern to the District.

13. During the 2013 2014 School year, Dr. Kirsch failed to achieve
resolution of labor and personal complaints and concerns raised by the
District unions and bias employees generally including reaching a member
random of agreement with the Williamsville teachers Association on the
stipend for employee work.

14. During the 2013 2000 school year, Dr. Kirsch failed to commence or
conduct an investigation into potential malfeasance by teacher in the
District even though it was brought to her attention that the teacher may
be receiving pay and benefits to which the teacher is not entitled.

15. During the 2013 2014 school year, Dr. Kirsch was asked to gather
information and provide a report and recommendation concerning
employee health insurance plan options to evaluate cost savings during
on-going bargaining with various unions which she never provided.

16. Dr. Kirsch failed to manage the Department of Human Resources in a


proper manner causing substantial discontent and conflict among
employees in the Human Resources Department.

17. Dr. Kirsch failed to manage the Department of Human Resources in a


proper manner causing employees to leave the Human Resource
Department based on her actions and inactions as the Departments
leader.

12
18. Dr. Kirsch failed to manage the Department of Human Resources in a
proper manner by failing to create or implement a transition plan for
employees who left or retired which negatively impacted the ability of
employees to complete essential tasks.

19. Dr. Kirsch failed to manage the Department of Human Resources in a


proper manner by failing to communicate with the staff regarding assigned
duties and responsibilities which negatively impacted employee morale.

20. Dr. Kirsch failed to interact with staff and to correct interpersonal
problems occurring in the Department of Human Resources.

21. Dr. Kirsch failed to maintain and update the TEACH database concerning
the reporting to New York State with regard to individual teacher
development hours jeopardizing teacher certifications for every
probationary teacher in the District.

22. Dr. Kirsch failed to properly verify or manage the Districts payroll
functions and processes which resulted among other things in an
overpayment of approximately $250,000 to a taxing authority of the
District.

23. Dr. Kirsch failed to timely conduct and complete a job offer and an
interview of a teacher to fill a position for a brand-new class.

24. Dr. Kirsch failed to address problems with substitute teacher shortages
and to prepare or implement a plan or program to address substitute
teacher shortages in the District even though this was a well-known
problem for the District raised by different stakeholders.

25. Dr. Kirsch failed to create a staffing template on WITS even though she
had been directed to do so.

26. Dr. Kirsch failed to plan any staff development for Assistant Principals or
other administrators to assist with succession planning even though she
had been directed to do so.

27. Dr. Kirsch committed numerous mistakes and submissions to the Board
of Education.

CHARGE 4. INSUBORDINATION SPECIFICATIONS (1-20)

1. In or around July 2013 Dr. Kirsch was asked to create a staffing template
for class size during 2013 2014 which she never provided even though
this system existed and had been utilized in prior years by the District.

13
2. On or about September 24, 2013, Dr. Kirsch was asked to provide to the
Superintendent a teacher attendance report which she never provided.

3. On or about April 1, 2014 Dr. Kirsch was asked to provide a report on the
Districts driver education program which she never provided.

4. On or about April 8, 2014 Dr. Kirsch was asked to review and provide
recommendations concerning substitute teacher training and the lack of
sufficient substitutes which was never provided even though this was a
major concern and a well-known problem for the District.

5. On or about May 1, 2014 Dr. Kirsch was asked to provide a report on


extracurricular activities at District schools which she never provided.

6. On or about June 26, 2014, Dr. Kirsch was asked to provide a report
concerning a physician who had a service contract with the District which
she never provided.

7. On or about June 30, 2014 Dr. Kirsch was asked to report to the
Superintendent on a payroll problem impacting dozens of teachers yet
failed to respond to or advise the Superintendent on a timely basis.

8. On several occasions during the 2013 2014 school year Dr. Kirsch was
asked to conduct an analysis of staffing scenarios to provide focus for
District budgeting in the budget process which she never provided.

9. On several occasions during the 2013 2014 School year Dr. Kirsch was
asked to provide staffing data and related comparative information which
she never provided.

10. During the 2013 2014 School year Dr. Kirsch failed to achieve resolution
of labor and personnel complaints and concerns raised by the District
unions and by its employees generally including reaching a Memorandum
of Agreement with the Williamsville Teachers Association on a stipend for
employee work.

11. During the 20132014 School year Dr. Kirsch failed to commence or
conduct an investigation into potential malfeasance by a teacher in the
District even though it was brought to her attention that the teacher may
be receiving pay and benefits to which the teacher was not entitled.

12. During the 20132014 School year Dr. Kirsch was asked to gather
information and to provide a report and recommendation concerning
employee health insurance plan options during ongoing bargaining with
various unions which she never provided.

13. During the 20132014 School year, on more than one occasion, Dr.
Kirsch had unauthorized communications, about confidential District

14
matters and information with various persons including the leader of the
Williamsville Teachers Association and the Williamsville Administrators
Association including disclosing District information regarding a teacher
grievance and an investigation into the conduct of District personnel.

14. On or about January 24, 2014 Dr. Kirsch attempted to circumvent


Superintendent Martzloff and give access to the Districts computer email
investigate module to another employee without seeking or obtaining
proper authorization from the Superintendent.

15. During the 20132014 School year, Dr. Kirsch did not seek or receive
authorization from the Superintendent to obtain access to the Districts
computer email investigate module.

16. Dr. Kirsch made false misleading and unsupported allegations regarding
the Superintendents access to the Districts email system to various
persons including the leader of the Williamsville Teachers Association and
the Williamsville Administrators Association.

17. Dr. Kirsch revealed that the Superintendent gained access to the Districts
email system to various persons including the leader of the Williamsville
Teachers Association and the Williamsville Administrators Association
even though she lacked the authority to do so under District policies and
jeopardized the investigation of a personnel matter.

18. In or around June 2014, Dr. Kirsch failed to implement and undermined
the recommendations of the Superintendent concerning a grievance filed
against the District by the Williamsville Teachers Association including
advising an employee and/or the Williamsville Teachers Association that
she did not support the District concerning a grievance filed by the WTA.

19. By or through Dr. Kirschs relationships with the President of the


Williamsville Teachers Association and other District personnel and
representatives, she sought to thwart the Superintendent, his authority,
objectives and/or recommendations.

20. On more than one occasion in June 2014, Dr. Kirsch met with various
employees of the District concerning alleged employment issues, including
the Districts Assistant Superintendents and the leaders of the
Williamsville Teachers Association and the Williamsville Administrators
Association in an effort to elicit complaints about personnel and work
matters concerning the Superintendent without basis or foundation and to
undermine the authority and position of the Superintendent negatively
impacting the Districts goals and objectives in severely compromising
resolutions and negotiations with these groups.

15
CHARGE 5: CONDUCT UNBECOMING AN ASSISTANT
SUPERINTENDENT

( Specifications 1-13)

1. During the 20132014 School year Dr. Kirsch failed to commence or


conduct an investigation into potential malfeasance by a teacher in the
District even though it was brought to her attention that the teacher may
be receiving pay and benefits to which the teacher was not entitled.

2. During the 20132014 School year Dr. Kirsch was asked to gather
information and provide a report and recommendation concerning
employee health insurance plan options to evaluate cost savings during
ongoing bargaining with various unions which was never provided.

3. During the 20132014 School year Dr. Kirsch forwarded via email various
communications about confidential District matters (including but not
limited to matters concerning union and personnel matters with the
Williamsville Teachers Association) to a private non-District email address
in violation of District policies.

4. During the 201314 School year and thereafter Dr. Kirsch retained
confidential District information and data at a private non-District owned
location in violation of the specific directive.

5. During the 201314 School year on more than one occasion, Dr. Kirsch
had unauthorized communications about confidential District matters and
information with various persons, including the leader of the Williamsville
Teachers Association and the Williamsville Administrators Association
including disclosing District information regarding a teacher grievance and
investigation into the conduct of District personnel.

6. During the 20132014 School year Dr. Kirsch failed to implement the
plans, objectives or recommendations of the Superintendent to modernize
the Department of Human Resources.

7. On or about January 24, 2014 Dr. Kirsch attempted to circumvent


Superintendent Martzloff and give access to the Districts computer email
investigate module to another employee without seeking or obtaining
proper authorization from the Superintendent.

8. During the 20132014 School year Dr. Kirsch did not seek or receive
authorization from the Superintendent to obtain access to the Districts
computer email investigate module.

9. Dr. Kirsch made false misleading and unsupported allegations regarding


the Superintendents access to the Districts email system to various

16
persons including the leader of the Williamsville Teachers Association and
the Williamsville Administrators Association.

10. Dr. Kirsch revealed that the Superintendent gained access to the Districts
email system to various persons including the leader of the Williamsville
Teachers Association and the Williamsville Administrators Association
even though she lacked the authority to do so under District policies and
jeopardized an investigation of a personnel matter.

11. In or around June 2014 Dr. Kirsch failed to implement and undermined
the recommendations of the Superintendent concerning agreements filed
against the District by the Williamsville Teachers Association including
advising an employee and/or the Williamsville Teachers Association that
she did not support the District concerning of grievance filed by the WTA.

12. By or through Dr. Kirschs relationships with the President of the


Williamsville Teachers Association and other District personnel and
representatives she sought to thwart Superintendent, his authority,
objectives and/or recommendations.

13. On more than one occasion in June 2014 Dr. Kirsch met with various
employees of the District concerning alleged employment issues including
the Districts Assistant Superintendents and leaders of the Williamsville
Teachers Association and the Williamsville Administrators Association in
an effort to elicit complaints about personnel and work matters concerning
the Superintendent without basis or foundation and to undermine the
authority and position of the Superintendent negatively impacting the
Districts goals and objectives in severely compromising resolutions in
negotiations with these groups.

Penalty Recommended

Should Kim A. Kirsch be found guilty of any and/all charges set forth
above, the recommended maximum penalty to be imposed in this matter
is termination. Based on the above charges, it is recommended that Kim
A. Kirsch should be terminated in the event she fails to request a hearing
pursuant to law.

Dated: December 8, 2014 Respectfully submitted,

Williamsville, New York s/_________________

Scott G. Martzlofff, Ed.D.

Superintendent of Schools

17
District Statement Of Case

The District has put forth many arguments that where an employee is disloyal,

insubordinate, incompetent and/or neglectful, it is a firmly established that the

employees rights do not defeat the rights, responsibilities and obligations of the School

District and in this instance the employees employment is properly terminated. Over the

course of this proceeding which was conducted over 49 hearing days spanning nearly 2

years the District argues that it conclusively demonstrated that Respondent is guilty as

charged. The District notes that Respondents woefully insufficient response to the

charges involved flat denial or blaming others along with other responses and has

demonstrated a complete and utter refusal to accept any responsibility for her failings

whether they were intentional or not (District Brief P3).

The testimony in the record shows that Respondent believes she has done

nothing wrong and has expressed no remorse whatsoever for her conduct. Her inability

or unwillingness to examine the wrongs resulting from her own actions and inactions

renders her uniquely inappropriate for mentoring or training or otherwise to mitigate the

penalty requested by the Board of Education in this proceeding. Her breaches of duty

cannot be papered over or corrected. The District also argues that Respondent cannot

ever be trusted again because of what she has done and because she does not

recognize that what she has done is wrong.

She has failed to comprehend that the head of Human Resources cannot discuss

what she perceives as failings or missteps by the Superintendent or other confidential or

sensitive information with the head of the Teachers Union or the head of the

18
Administrators Union. Her position as a member of the District cabinet obligated her to

discuss those issues with the Superintendent or the Board only. Bringing the Union into

such communications destabilizes the Districts reputation and ability to function

properly. It is clear that Respondent did not consider the potential for harm to the District

at all for ignoring damage that she has done to the institution by which she is employed.

Based on the mountains of evidence adduced against her in this case the District

submits that Respondent is guilty of the charges preferred against her for which the only

proper result is her dismissal from employment from the District.

This is an extraordinary 3020a disciplinary proceeding as it concerns a tenured

position at the District leadership level and a member of the Superintendents top level

leadership team sometimes referred to as the Superintendents cabinet. This is

understood to be a team of trust in which the Superintendent relies on to discuss

confidential matters involved in running a School District. This team is charged with

guiding the Districts educational and operational needs and with implementing all

manner of programs and priorities set by the Board of Education. This position requires

the utmost confidence and demands the complete confidence of the Superintendent.

Some of the duties of the Assistant Superintendent for Human Resources include:

Directing the program for recruitment and selection of personnel;

Interview applicants and make recommendations to the Superintendent


for all appointments;

Serve as the District spokesperson for all matters pertaining to Labor


Relations; review and design procedures to ensure the Districts
compliance with State and Federal Laws, Regulations and Policies;

Be responsible for personnel and payroll procedures;

19
And perform such other tasks and assumes that responsibilities as
directed by the Superintendent of Schools (JX 2).

The Board of Education relies upon this position to help the Superintendent

translate its policies into action and administer its programs. There is an expectation

that the incumbent holding the position will cooperate with and carry out the

responsibilities delegated by the Superintendent. In this instance the Board of Education

reasonably expected the Respondent to support the Superintendent including, carrying

out any and all lawful District operations, including changes in the operations that he

was hired to implement, and by failing to do so Respondent was not providing efficient

and competent service under Section 3012 of the Education Law (District Brief P6).

Respondent has been charged, amongst other things, with keeping the

Superintendent uninformed of issues and concerns raised by District employees; with

forwarding information on confidential District matters to her personal email accounts,

as well as retaining District information at her home; and with failing to manage her

main area of responsibility, the Human Resources Department, which caused

discontent, friction and conflict among the staff. In addition the District discovered

Respondent was having unauthorized communications with certain individuals who did

not have a need to know on confidential or sensitive District matters and otherwise

thwarting and undermining the Superintendents authority through the relationship with

the President of the Williamsville Teachers Association (WTA) and other District

employees. Respondent took action or communicated information on confidential or

sensitive matters (such as contract grievances) to persons who had no need to know

and without authorization or legitimate purpose.

20
At hearing both District and Respondent witnesses established that Respondent

did not inform the Superintendent about issues raised by the President of the WTA to

Respondent on several different occasions regarding important pressing matters to

effectively undermine the Superintendents relationship and authority with the President

of the WTA.

It cannot be disputed that Respondent in fact, forwarded District communications

in particular those involving the Superintendent to her personal email account for the

purpose of creating a record against the Superintendent. She likewise retained District

information and documents at her home in contravention of an express directive. In

addition the evidence showed that the Human Resources Department was effectively

fractured, discontented and poorly managed, resulting in employees who are fearful and

did not understand the job responsibilities from day to day amongst other things. During

the 20132014 school year Respondent did not perform duties which are expected or

requested either properly or timely and in many cases failed to do requested items

completely (District Brief P-7).

With the evidence the District adduced at the hearing, it was proven that

Respondent took a remarkable step of communicating with the WTA President

personally outside of the District normal means of communications to evade discovery

regarding the transfer of a teacher in June 2014. In a June 14, 2014 email to the WTA

President, Respondent acknowledged that her conduct could be considered

insubordination and as such she asked the President of the WTA not to share their

discussions with others (DX 117). Knowing that she was engaging in possible

misconduct she was motivated to proceed forward and agreed to organize a meeting

21
with the WTA President to convince other (unwitting) Assistant Superintendents in the

District to bring forth multiple issues that she compiled to the Board of Education about

the Superintendent so that the Board would have no option other than to buy out his

contract. (DX 117).

This conduct is so grave and the purpose so plain that her own witness Elizabeth

Bradley herself a retired Assistant Superintendent for Instruction, from another School

District said that it was extremely unusual and highly unlikely that an Assistant

Superintendent would hold a meeting with the President of the Teachers Union when

the topic was termination of the Superintendents contract. (TR P-6039). During the

exchange of questions on this topic the witness was visibly confused by the prospect of

an Assistant Superintendent participating in such a meeting and shes struggling to

understand the question (TR P6041 43). The hearing officer recognized the difficultly

of the question for the witness and clarified the issue so that Bradley understood it. She

then agreed that it wouldnt be appropriate for an Assistant Superintendent to be with

the Union President where the known purpose would be to discuss the termination of

the Superintendents contract, as this is what motivated the meeting Respondent

planned with the WTA President on June 15, 2014 (DX 117).

The revelation of Respondents wrongful acts came as a result of a full

investigation of her conduct which started at the end of the school year in 2013-14 and

continued into 2014-2015 school year. Before that time there had been some

indications that Respondent was not performing her job at the level expected. At the

end of the 2012-13 school year the Superintendent had reservations about Respondent

and noticed some recommended areas of improvement to attend to in the 2013-2014

22
school year including directing her to foreshadow for him personal concerns brought to

her by employees (DX 2).

However as the year progressed the Superintendent grew increasingly

dissatisfied with the Respondent. There was a dismissiveness towards the

Superintendent, a disinterest and/or a failure to follow up or follow through on matters

he brought up and an unwillingness to solve problems with which he raised to her (DX

1). The Superintendent spoke of these issues as a general matter to the Board of

Education in May 2014 including stating generally that he had been experiencing some

trust issues with his administrative team (TR P. 1908). Because the Superintendent had

inherited his cabinet of Assistant Superintendents from the prior Superintendent the

Board encouraged him to assess his leadership team and determine the best fit and

organization for the long term of the District.

Toward the close of the 2013-14 school year for the first time there were

concerns brought to the Superintendent about the management of Human Resources

(TR P. 3947).

There were claims of harassment in the Human Resources office and a hostile

work environment which focused primarily on Respondent and Patty Grupka, another

manager in the Department at that time who is no longer employed by the District. In

addition, at that time approximately one week or so earlier, the Superintendent learned

that an informant, someone who works closely with the Superintendent, was

communicating with the WTA and working to build a case to get rid of him (TR P. 3319).

23
When the investigation into issues raised about Respondent began in late June

the Superintendent saw that Respondent was forwarding District emails involving

confidential or sensitive communications from him to her personal email account (TRP

P3319 20). The Superintendent saw no legitimate reason for Respondent to do that

and lost all trust in Respondent at that time. These issues and other matters which were

uncovered during investigation of Respondent formed the basis of the charges in this

instant matter before this hearing officer (District Brief P. 9). The Superintendent learned

of these emails, after he gained access to the District Mail Meter service over the

objections of Respondent.

On June 23, 2014 Respondent and the WTA President conducted a meeting with

the other Assistant Superintendents including Marie Balen, Anna Cieri, and Tom

Maturski as well as Charlie Galluzzo, President of the Williamsville Administrators

Association (WTA) which Respondent and the WTA President had planned on June 15,

2014. The meeting was called by Respondent and the WTA President to discuss the

pending transfer of a District teacher and other concerns about the Superintendent

which would be later taken to the Board of Education to try and convince the Board to

buy out the Superintendent (DX 117). The meeting did not end with any planned course

of action because as Mr. Maturski explained both he, Dr. Cieri and Dr. Balen decided to

hold off addressing the Board as requested (TR P. 62).

On or about June 24, 2014 the Superintendent was taking steps in his

investigation into complaints against Respondent including seeking assistance from one

of the District IT employees Debra Radice, to grant himself access from BOCES to Mail

Meter, the program which stores the Districts emails. Through the investigative module

24
in Mail Meter authorized users may examine the emails of District employees. As noted

when the Superintendent began looking at Respondents emails on or about June 25,

2014 he immediately recognized that Respondent was sending communications by or

about him to her personal email address (District Brief P. 10).

After Radice assisted the Superintendent in sending the necessary authorization

form to BOCES on June 30, 2014 she informed another IT employee Mark Koedel

about this development. Koedel had been told by the Respondent sometime earlier to

immediately inform her if anyone else ever gained access to Mail Meters investigative

module. He informed Respondent about the Superintendents access on June 30 and

thereafter that same morning in a panic, Respondent called the WTA President,

Galluzzo and the other Assistant Superintendents to a meeting in Balens office.

Respondent then informed everyone that the Superintendent had access to Mail Meter

and claimed that this was improper and in violation of rules and procedures. She called

the Districts counsel (at that time) in front of the group at the meeting and thereafter

requested, a meeting with Dr. Losito, the Vice President of the Board of Education at

the time. Losito was to assume the Presidents office on the Board the next day on July

1, 2014.

Respondent then met with Losito that day telling her of the Superintendents

access to the Mail Meter and describing other concerns about the Superintendents

conduct which would get in the press. After that meeting because of the number of

assertions raised by Respondent including the matter of the Superintendent getting into

the press and because she is one of 9 board members, Losito called an emergency

meaning of the Board of Education on July 1, 2014 (TR P. 1873; 1882 83).

25
The District notes that the timing and order of the foregoing events is critical to

understanding the larger issues in this proceeding. In mid-June 2014, word had spread

in the District reaching the Superintendent that someone close to him was working with

the WTA to provide confidential information and that the WTA was seeking to oust the

Superintendent. Respondent knew that the WTA was seeking to oust Dr. Martzloff for

quite some time, and never informed him. On June 15, 2014 Respondent and the WTA

President had communications where that very purpose was proposed and a meeting

was planned.

On June 23, 2014 the meeting planned by the WTA President and Respondent

occurred but the other Assistant Superintendents did not want to take any further action

that day or go to the Board. From that point, the Assistant Superintendents were out. It

was then suggested that another meeting be held.

On or about June 25, 2014 the Superintendent commenced an investigation of

Respondent and learned that she was the informant he had heard about. On June 30,

2014 Respondent was informed the Superintendent had access to Mail Meter and was

now able to read her email and see what she had been doing. Seeming to recognize

that her misconduct was now unmasked she abruptly called WTA and WAA Presidents

to meet at the District office and manufactured a need to see the Board Vice President,

immediately, falsely claiming the Superintendent improperly accessed Mail Meter

(District Brief P-11).

On June 30, 2014 Respondent cunningly was raising an allegation against the

Superintendent before he could lodge any complaint against her, enabling her to claim

26
retaliation whenever he thereafter decided to take action against her, based upon what

he had learned. She beat the Superintendent to the punch as it were, but the timing

described above reveals Respondents disclosure to Losito as nothing more than

obfuscation to cover her tracks for disloyalty, misconduct and insubordination.

Because of what she was told by Kirsch, Dr. Losito then called an emergency

meeting of the Board, meeting on July 1, 2014. At that time, a lengthy meeting was held

by the Board as they examined and reviewed Respondents claimed allegations. The

Board concluded that there was no merit or basis to the allegations Kirsch brought to

Losito regarding the concerns she brought forward about the Superintendent.

As Losito testified at hearing, despite the hours she spent listening to

Respondents complaint there really wasnt anything that the board felt was

significant (TR P. 1916).

The Boards lack of interest in Respondents claim sparked an uproar by the

WTA which had similar reasons to avoid full disclosure of its true motives in its

communication with Respondent in particular. Throughout the summer and into the fall

the WTA and WAA claimed the Superintendent had acted improperly citing various

specious, spurious or absurd claims some of which dated back to 2011.

The District argues that the truth is that Respondent actively colluded with the

WTA president in June, July and August 2014 if not earlier and she met with the WTA

President and assisted in directing communications to the Board of Education. The

Board did not accept the merit of Respondents or the Unions claims and advised the

WTA and WAA of its position. While the efforts of the WTA and WAA can be viewed as

27
Labor Relations activism where Respondent is concerned, when she decided to work

for the unions and against the District, Board and Superintendent she engaged in

conduct unbecoming an Assistant Superintendent.

Respondents willingness to take steps to destabilize the Superintendent and her

consistent efforts to raise or collect complaints, engaging in discussions with the

ultimate purpose to terminate the Superintendents contract, renders her supremely unfit

for her position. Her collusion with the Teachers Union President to buy out the

Superintendents contract with the District is an irredeemable offense against the District

and truly any employer. Her decisions to act as an independent party to advance her

own agenda and her failure to support the Districts interests are manifest. Ultimately

however Respondents duty is to the District to the mission and policies mandated by

the Board of Education and to the management of those objectives overseen by the

Superintendent. Respondent glaringly failed to maintain fidelity to the Districts interest

and in particular to the Superintendent.

The District emphasizes that this is not a case where a lower level employee has

served the District for an extended period of time without issue. Rather, Respondent is a

relatively short-term employee of the District having started in late 2007 earning tenure

in the position in late 2010, approximately nine months before Superintendent Martzloff

began working for the District. She then worked with Martzloff for only three more years

before the investigation into her conduct started, which resulted into these protracted

proceedings. Viewed through the prism of her time with the District only, it becomes

clear that Respondent has had a relatively undistinguished record in the District and that

28
she has benefited from the close personal relationship with the previous Superintendent

who hired her and recommended her for tenure in 2010.

The District does not lightly seek termination of one of its employees.

Respondent refused to accept the authority of the Board of Educations choice for

Superintendent and then undermined her superior with the District Unions and various

employees. This is a breach of some of the most fundamental expectations any Board

would place on such a highly paid District level administrator.

29
Respondent Statement of Case

The District has preferred five charges comprised of 113 total specifications

against Respondent and they break down into three general areas: Undermining the

Superintendent; Individual job performance failures; and Creating a Negative Work

Environment in the Human Resources Department. Respondent argues that the hearing

officer will find that the paucity of actual proof of any wrongdoing by the Respondent in

this case is striking. After hearing the District case which on paper alleges so much and

yet reality proves nothing, one would wonder, Why? Has the Superintendent chosen to

pursue a wide range of unfounded claims against this highly competent and well

respected professional? (Respondent Brief P-6).

Respondent argues that the answer to that question can be summarized in one

word retaliation. Dr. Kirsch was singled out for unfounded discipline because on June

30, 2014 upon the advice of District Council she brought legitimate concerns that she

and other employees had about the Superintendents governance of the District to the

attention of the incoming Board of Education President, Patty Losito. As will be shown

herein those concerns had been mounting for two years and came to a head that day.

Once the Superintendent discovered that Dr. Kirsch had raised these concerns to Dr.

Losito, he embarked on the clear crusade to exact revenge against her, and as seen

through the lens of retaliation, the entire picture becomes clear.

This case is very similar to the Board of Education of the Eastchester Union free

school District v. Sullivan, 31 EDU CA. Dept Rep 301 1992 which involved the personal

vendetta against the tenured administrator resulting in 3020a charges extremely similar

30
to those in this case. In that matter, 24 of the 33 charges preferred against Respondent

were dismissed and a penalty of a fine in the amount of $2500 was imposed. The

District appealed to the Commissioner asking for additional findings of guilt and a more

severe fine. The Commissioner not only dismissed the appeal strongly, chastised the

District for what was obviously prosecution of charges based on personal animus

(Respondent Brief P-7).

Respondent notes that the primary purpose of a disciplinary proceeding is not to

be punitive, but rather to determine a teachers fitness to teach and carry on

professional responsibilities. These charges against Dr. Kirsch are clearly intended to

be punitive and nothing in the record even hints at any inability of Dr. Kirsch to carry on

her professional responsibilities. The charges against Dr. Kirsch are clearly intended to

be punitive and nothing in the record even hints at any inability for her to carry out her

professional duties. The charges in this proceeding fall quite short of being

substantiated or substantial. The zeal with which the case was prosecuted is troubling.

Except for an isolated disputed evaluation just prior to the commencement of the

charges, Respondent had an unblemished record in Petitioners employ. The

Commissioner of Education has made it clear that when an administrators record is

pristine as Dr. Kirsch is up until July 9, 2014, and suddenly without warning the

administrator finds him or herself the subject of a scathing evaluation and subsequent

disciplinary charges it is strong evidence of bad faith by the School District and that

conclusion is inescapable here.

This is particularly troubling where the District in its eagerness to bring charges

neglects to provide the teacher with notice and adequate opportunity to comment on

31
any allegations of alleged undermining or any other complaint about her performance

before the charges were filed. In such cases one must question whether the

extraordinary expenditure of time energy and resources is warranted. Given the high

stakes of such proceedings and the obvious diversion of resources I urge the District to

consider less drastic alternatives to resolve personal matters that on the whole failed to

rise to the level of serious misconduct. The District here is quite guilty of wasting an

incredible amount of time in public resources on this instant case. (Respondent Brief

P-8).

The hearing officer is thus compelled not only to dismiss all charges but also

pursuant to Education Law 3020a (4) c. to require the District to reimburse the public for

this grotesque abuse of public funds for purposes of a personally motivated and

determine the charges are frivolous as a matter of law. They were commenced by the

District in bad faith, solely to harass or maliciously injure Dr. Kirsch - and the public and

Dr. Kirsch should not have to bear the cost of this malicious abuse of power. The legal

administrative costs were an unnecessary burden on the taxpayers of District - not to

mention that the Superintendent got paid by the taxpayers of the Williamsville School

District to sit in on this hearing for every minute of the 48 hearing days instead of

running the District. This is an outrage.

Making the abuse potentially worse, the Superintendent fed the charges to the

Board of Education based on a personal animus and the Board approved them without

reviewing a single document. In Dr. Kirschs demand for a Bill of Particulars the District

was asked to provide copies of any and all documents, papers, notes or reports that

were presented to the Board of Education members regarding these charges and/or

32
reviewed by board members where they vote probable cause. Incredibly not one

single document was received by the Board in the process of voting on 113 specific

charges. This is outrageous malfeasance and a breach of the public trust by the Board

of Education for which the District as a whole as well as the Board members in their

individual capacities, are liable, Board members that may be personally liable for

damages caused by a failure to perform ministerial acts.

The hearing officer has a duty to ensure that justice is served in this case by not

only exonerating Dr. Kirsch but by seeing to it that the expenditures incurred by Dr.

Kirsch and the taxpayer of the District are made whole.

Regarding allegations of undermining the Superintendent this case comes down

to whether or not Dr. Kirsch breached a duty of loyalty to Martzloff by her interactions

with the Williamsville Teachers Association the Administrators Association and the other

three Assistant Superintendents Dr. Marie Balen Assistant Superintendent for

Instruction, Dr. Anna Cieri, Assistant Superintendent for Instructions and Mr. Thomas

Maturski, Assistant Superintendent for Business. This started with a meeting at Mr.

Maturskis house in October 2013 and ending with a meeting with the WTA and WAA

leadership in July 2014. The period that led to these events was a tumultuous one in the

District. These three separate constituencies, the teachers, the building administrators

and the Assistant Superintendents had mounting concerns about Dr. Martzloff that

reached to the very essence of the District. Dr. Kirsch compiled and maintained a record

of those concerns.

33
The concerns led to various meetings at which members of these three

constituent groups discussed their thoughts and trepidations about the path down which

he was leading the District. The interactions with the WTA and WAA which led to

accusations of breach of duty of loyalty against Dr. Kirsch can only be properly

understood in the context in which they arose. The record is crystal clear that Assistant

Superintendents, building administrators, teachers and non-instructional staff all shared

significance concerns and even fear of his actions in the period leading up to the end of

the 2013-14 school year. These concerns which went to the heart of the governance of

the District as a whole escalated and consummated in five meetings in which Dr. Kirsch

participated and which led to these charges.

The hearing included extensive testimony about the evolution of these concerns

and without understanding that evolution the various meetings with Dr. Kirsch and other

Assistant Superintendents held with the WTA and WAA cannot be understood properly.

The categories of these concerns include favoritism for his personal and political

interest; lack of professional of him and transparency in the hiring process and ethical

concerns including demonstration of a penchant for retaliation.

The concerns of Dr. Kirsch and others that she categoried and compiled about

Dr. Martzloff include:

At times he seemed to use his position as Superintendent to obtain preferential

treatment for himself his family and his political interest. The concerns came from many

within the District community and were not merely complaints about Dr. Martzloff, but

rather went to his judgment, ethics and professionalism. One of the first concerns was

34
his inappropriately manipulating class lists. Dr. Martzloff had a child who was going to

Mill Middle School in September 2013 and he gave school Principal Mr. Calendar a list

with names of children who would be favorable toward his child and those who would

not be, which is contrary to policy and protocol. (TR 4342:10-15. He got what he wanted

while the other students were put at a disadvantage (Respondent Brief P-13).

Dr. Kirsch then noticed a side of him early on regarding the community education

director who he wanted fired. he was red-faced he was angry with me and he said to

me I dont know whats going on but the community ed. director I need to get rid of

her (Respondent Brief P-15).

The next concern of Dr. Kirsch involved the Director of the Community Education

Program again who told her that an instructor had informed her that the Superintendent

had asked that she take his two daughters into one class in knowing violation of the

very strict procedure which provides that the lessons are given on an individual basis

only. The lessons were ultimately done together as the Superintendent had requested.

(TR 4460-61).

The next concern brought by Dr. Kirsch concerned an extra physical education

classes is contained within a confidential supplement for the section and may not be

discussed herein.

The next concern involved glass backboards on the basketball court at Forest

elementary school where his child attended and played basketball. In 2011-12 the

Superintendent decided to install glass backboards at that school. At the hearing Board

member Dr. Losito tried to explain this away by claiming that the backboard

35
replacement was part of an overall project to upgrade facilities in the District but

conveniently and inexplicitly she said that there would be no record of those discussions

in the Board Minutes because they took place in Executive Session, which is privileged.

Dr. Losito had no rational explanation why discussion of public expenditure monies

would occur in Executive Session. Dr. Losito was either lying at the hearing or the board

violated the law by discussing the matter in executive session.

The next concern compiled by Dr. Kirsch involved a school bus run to the YMCA

which the Superintendent sought to institute at a school where his children attended.

The run was instituted without ordinary procedures being followed and accordingly this

bus run created the appearance of an impropriety. This calls into question the judgment

and ethics of the Superintendent.

The next concern brought forward involved a school bus run to Mill Middle school

intramurals. The Superintendent made a request to initiate a bus run at Mill Middle

School for sports practices, a request that was a unique to the school. The run was

initiated at the request of the Superintendent and this led to concerns amongst the

Assistant Superintendents regarding equity in application. Equity in application of rules

was the ethical standard the Assistant Superintendents expected yet it was inequity

that Martzloff favored. The issue was not whether a bus run was a good idea or a bad

idea, the issue is whether it improperly and inequitably favored the Superintendents

interest which it did because the Superintendents children attended that school.

The next concern involves a stipend for Mr. Ostafew a Williamsville employee,

WTA member who Dr. Matzloff had previously worked with in the Byron Bergen

36
Central School District. Mr. Olstafew stated that he considers the Superintendent to be

both a personal friend and a business acquaintance. Once he was hired in Williamsville,

Martzloff sought to make an arrangement whereby he would be paid for work for which

he was not entitled to be paid under the teachers union collective bargaining agreement

(R-6) namely taking pictures at sports events. Ultimately under the WTAs strong

objection and Dr. Kirschs efforts, the stipend was not paid. Dr. Kirsch and others had

every reason to view this as a highly questionable attempt by the Superintendent to

make a backroom deal (Respondent Brief P.19).

The next concern compiled by Dr. Kirsch, was a concern regarding Universal

Pre-K when in the 2012-13 school year Dr. Martzloff approached Dr. Ciari to ask her

about her making special arrangements to have a Board Members child admitted to the

District Universal Pre-K program by circumventing the standard lottery. It should go

without saying that the Superintendent asking for preferential treatment for a Board

Members child is violation of clear District procedures and to the unavoidable detriment

of another is clearly unethical.

Other concerns testified at a hearing involving favoritism included meal

reimbursement where the Superintendent submitted reimbursement forms for his

familys meals and that those reimbursement requests exceeded the maximum

allowable amounts and had to be reduced (TR 106:18-20). The next concern was the

obtaining of a duplicate diploma in June 2013 for a School Board member in violation of

District policy. However in this instance Dr. Martzloff forced the exception as a political

favor even though he knew it was against policy.

37
The next concern compiled involves favoritism and lack of transparency in the

hiring process when he hired Keith Wing in the 2011-12 school year for a principal-ship.

Dr. Martzloff indicated that he had hand-picked Keith Wing for the job with whom he

previously worked with at the Byron-Bergen School District. Dr. Kirsch provided some

insight to him at that time about the how the hiring process had worked in Williamsville.

She told him that the long-standing hiring process at the District involved parents,

teachers and sometimes students on hiring committees and she told him she

thought... the fact that we would be bringing someone from his most immediate place

of employment might be concerning to the people on the committee. This is not a

question of the Superintendents authority as the District would try to characterize it.

Instead it is a question of the perception of favoritism for a friend from his former District

as well as an issue of poor leadership. If the Superintendent wants to change the hiring

procedures he could have done so explicitly, however he chose instead to work behind

the scenes causing uncertainty and distrust among his staff. Wing was hired however.

The next show of favoritism involved the hiring of Glenn Ostafew with whom the

Superintendent previously worked. Dr. Matzloff decided to add an additional technology

integrator without discussing it with the leadership team. Mr. Ostafew was decided by

the Superintendent before the hiring process even started. The Superintendent

overruled the decision of the committee giving a directive that Mr. Ostafew should be

hired. The issue here is not the legality of Dr. Martzloffs authority to hire. It is the fact

that he allowed a hiring committee to be convened and then usurped it completely to

hire a friend and such actions demonstrated a lack of transparency and a lack of

respect for those who are working in good faith with him.

38
Many ethical concerns were also memorialized including the retaliation against

the teacher for a posting she placed on Facebook (Respondent E-5). The posting was

critical of the District and the Superintendent. The Superintendent then insisted and

persisted in having Dr. Kirsch effectuate the transfer of the teacher on June 13, 2014

which he did even knowing that the transfer was ill-advised by her and possibly illegal.

Ultimately, a resolution was reached in the grievance filed by the Teachers Association

and the teacher was transferred to another grade level within her building instead of

being transferred to another building. What is relevant here is that there was more than

ample basis for Dr. Kirsch, the other Assistant Superintendents, the building Principal

and the teachers to form a good faith belief that Dr. Martzloff was engaging in illegal

discriminatory retaliation in this instant. This occurrence is also telling of the

Superintendents personality as he tried to punish a teacher for exercising her First

Amendment rights but was overpowered by the Teachers Union. In this proceeding he

is trying to do the exact same thing to Dr. Kirsch for exercising her amendment rights by

talking to Dr. Losito and he will be overpowered by the due process protection of the

Education Law (Respondent Brief p. 26).

The additional concern of Dr. Kirsch involves retaliatory conduct and the lack of

transparency especially when it involved the issue of Mail Meter access. Prior to Dr.

Martzloffs employment the decision was made that Dr. Kirsch would have access to

Mail Meter and one other person. After Dr. Martzloff discussed the idea of putting

himself on as an authorized user Dr. Kirsch told him, that I didnt think it was a good

idea, that had not been the practice of the District, and that there was a

Superintendent in our area who ultimately lost his position because hed access the

39
email of the District. (TR 5674:8-14.) Yet in June 2014 the Superintendent

surreptitiously granted himself access to Mail Meter, setting off a chain of events that

has reverberated in the District ever since (Respondent Brief P-27). There is no dispute

that the Superintendent had full authority to grant himself access to Mail Meter and that

premise is not in dispute. For all of the Districts protests, they keep missing the

fundamental point that it was never a contention of Dr. Kirsch that Dr. Martzloff lacked

the actual authority to go into Mail Meter. What Dr. Kirsch has said was that it violated

District practices. Dr. Martzloff created a culture of fear and distrust in his time in

Williamsville and his surreptitious access to Mail Meter was the proverbial straw that

broke the camels back. So the reaction was real and widespread and while he did not

breaking any laws, he set off a wave of panic in the District. The Superintendents

accessing Mail Meter came to light on June 30, 2014 and upon learning of this

information Dr. Kirsch called District Council and then convened a meeting to discuss

what she had discovered and then share the information at a meeting with Board

Member Patty Losito. This violated District policy. Despite the District and the Boards

bluster that Dr. Martzloff as Superintendent had the right to Mail Meter access, the

relevant board policy states, the Assistant Superintendent for technology services and

or his/her designee may access electronic files. Dr. Martzloff is not the Assistant

Superintendent for technology services, nor was there any testimony that he was the

designee thereof. So there is clearly a basis for the contention that the Superintendents

access to Mail Meter was inappropriate under District policy. Also, it violated prior

District practices. (Respondent Brief P-29).

40
There were other ethical concerns that were compiled by Dr. Kirsch including the

recording of a Board conversation, not keeping track of time in WITS, using District

Council for personal matters, jeopardizing an investigation, and no fewer than 21

additional concerns on a list beyond the ones Dr. Kirsch testified about on direct

examination (D110).

During the 2012-13 school year Dr. Martzloff told Dr. Kirsch that he had just

recorded a conversation with the Board of Education member unknown to that

individual. Dr. Kirsch with his permission contacted District Council Laura Purcell who

advised Dr. Martzloff to lock the recording somewhere safe. This was yet another factor

in Dr. Kirschs concerns about the Superintendents honesty and ethics.

An independent auditor noted that Dr. Martzloff was not tracking his own time in

the District system and recommended that he do so. Mr. Maturski and Dr. Kirsch spoke

to the Superintendent about this and he admitted that one of the changes that came

about after the report was that one of the Board Officers signs off on his attendance

every two weeks which means that he was not having his time approved by the Board

Officer until or after the audit completed in April 2014.

Dr. Martzloff used District Council to answer questions about unemployment

benefits for his wife who is not employed in the District.

In 2013-14 allegations had been made that a teacher may have been having a

sexual relationship with a minor student and in a meeting with Dr. Kirsch and Dr.

Martzloff, in which the Amherst Police Department specifically asked Dr. Martzloff not

to convey the allegations to the Board of Education for fear of jeopardizing the

41
investigation, but he disregarded their instructions and revealed the information to the

Board anyway. (TR 4534 5, 4535 6.)

There were no fewer than 21 additional concerns on a list beyond the ones Dr.

Kirsch testified about on direct examination. (Exhibit D 110 TR 6038.) Dr. Kirsch

highlighted some of those for this record at TR 6051. The concerns listed in the

preceding section have been brought to the attention of the Board of Education by the

WTA, the WAA and the other three Assistant Superintendents outside of this

proceeding.

Exhibit D-109 is a letter to the Board from Mr. Licht and the WTA dated August

20, 2014 that addresses three concerns that had been raised to the Board specifically

including Dr. Matzloff showing favoritism to his own children and personal friends; Dr.

Martzloff interfering with the hiring process; and Dr. Martzloff engaging in retaliation and

intimidation. The Board of Education defends the Superintendent on all of these counts,

which is their right, however there can be no doubt that in the time leading up to the end

of the 2013-14 school year the concerns listed above were real and widespread. They

were not the subjective criticisms of one person-they were significant global concerns

that required the intervention of the Board of Education. (Respondent Brief P-32).

Respondent Exhibit R-2 is a letter sent to the Board of Education on August 25,

2014 after Dr. Kirsch was placed on leave from Superintendents Cirie, Balen and

Maturski. By this letter alone it is clear that the concerns that were festering in the spring

and summer of 2014 were not minor ones and that the Assistant Superintendents felt

42
that they warranted attention by the Board. These concerns go well beyond mere

differences regarding the Superintendents leadership style. (TR 279:13-15.)

There can be no question that the concerns outlined above were genuine, real

and serious and shared by Dr. Kirsch. Her mistake was that when she voiced them to

Dr. Losito, she voiced them alone. Justice cannot allow Dr. Kirsch to be the only

casualty of the expression of these concerns to the Board of Education.

In the context of these long-standing concerns about the Superintendent comes

the series of events that form the heart of this case namely interactions between Dr.

Kirsch and the other Assistant Superintendents on the one hand and the Teachers

Union leadership particularly Michelle Licht and the administrators union leadership on

the other. The District alleges that these meetings were an improper violation of Dr.

Kirschs duty of loyalty to the Superintendent because the facts in content of those

meetings were not disclosed to him. This is the essence of this entire proceeding and to

be unequivocal it is nothing but a cover story to justify the Superintendents desire to

retaliate against Dr. Kirsch for raising genuine concerns to Dr. Losito at the direction of

the Districts own counsel.

There was no master plan to remove the Superintendent and in fact there seem

to be no plan at all and the record reveals that Dr. Kirsch and the other Assistant

Superintendents did indeed participate in these meetings but there was no clear agenda

or particular outcome that they were seeking to do. They all agreed that there was a

serious problem in the management of the District but they did not know what to do

about it or what steps they should take so they were searching in the dark for how to

43
address what they saw as an growing problem. The first meeting took place on a

Saturday in October 2013 at Mr. Matturskis house and the decision to meet was a joint

and Dr. Kirsch did not initiate the meaning nor did she elicit any complaints about the

Superintendent, attempt to plant any discontent about him or suggest that anyone

disobey him.

The Assistant Superintendents discussed some of the issues outlined in part

one of this brief such as the hiring process and lack of communication raised by Dr.

Kirsch. We talked about what we thought we could do about the situation and we did not

come to a conclusion about that. (TR 4599:23-24.) There was no basis to conclude that

Dr. Kirsch did anything improper or that she did anything at all differently than her

colleagues at this meeting. Respondent Brief P-35 in April 2014 the Assistant

Superintendents met with Laura Purcell at a meeting in the Districts North High School.

Dr. Kirsch did not call this meeting but rather the Assistant Superintendents collectively

had a conversation about having a meeting. It should be crystal clear that Dr. Kirsch

was not inventing issues or enticing anyone to speak out against the Superintendent.

There was an organic process in which the Assistant Superintendents and the

leaders of the WTA and WAA needed an outlet to discuss their mounting concerns and

Dr. Kirsch was just one more participant in the process. There is no evidence to support

any allegation that Dr. Kirsch did anything subversive or inappropriate or for that matter

that she did anything at all differently than her colleagues at this meeting. (Respondent

Brief P-36).

44
Shortly following that meeting Dr. Kirsch had a conversation with Dr. Glover

formerly the District Superintendent at the Genesee Valley BOCES and although the

other Assistant Superintendents originally planned to join Dr. Kirsch at this meeting they

did not do so. Dr. Kirsch stated that her belief was because they were frightened. (D-

134a). During the meeting Dr. Glover suggested that perhaps he or one of his

colleagues could help the situation by meeting with all the Assistant Superintendents

and ultimately facilitating a meeting between the Assistants and the Superintendent. No

specific plans came out of that meeting and Dr. Kirsch did not in any way discuss the

possibility of trying to have the Superintendent removed with Dr. Glover. (TR 4620:14-

17.) After summarizing these three incidents which the District relies on as a proof that

Dr. Kirsch was somehow a traitor, there is no hint of subversion anywhere. (Respondent

Brief P-37).

Michelle Licht President of the Williamsville Teachers Association called a

meeting in the WTA office for June 13, 2014. The Assistant Superintendents were in

attendance at that meeting which lasted approximately an hour at the WTA office. The

purpose of the meeting as Dr. Kirsch understood it was to get feedback about the

increasing concerns with the Superintendent. (TR 4622:4623.)

The WAA President stated at that meeting that he had to have a meeting with the

teacher who is being transferred (Miss Floccare) and he said that raised concerns by

others at the meeting including the hiring process, the class lists and requests from the

Assistant Superintendent about the Superintendent requesting duplicate diplomas for a

Board Member. He also testified that Dr. Kirsch did not contribute any accusations

complaints or other comments whatsoever to the discussion. It is uniformly clear that Dr.

45
Kirsch was not attempting to plant discontent against the Superintendent during the

meeting and furthermore she did not attempt to elicit complaints out of anyone in

attendance nor did she attempt to force that action going to the Board of Education or

anybody.

At one point during the meeting Miss Licht asked if the situation with Dr. Martzloff

could be fixed and everyone around the table said No. At the end of the meeting the

consensus was to consider communicating with the Board about the concerns which

were mounting about the Superintendent. Dr. Kirschs input was only to suggest that

perhaps the communications could come in the form of a letter though she had no

suggestions for what the letter might say. (Respondent Brief P-39).

Dr. Kirsch did absolutely nothing to undermine the Superintendent whatsoever

and the idea that the meeting was in any way of violation of Dr. Kirschs duty of loyalty is

absurd. If the District wanted to prove that Dr. Kirsch subverted the Superintendent in

any way they had to come up with something better than this. But they did not.

Dr. Kirsch called meeting on June 30, 2014 upon learning that the

Superintendent had accessed the Districts mail meter system. That day she learned

from Mr. Koedel that the Manager of Educational Technology Services and Operations

informed him that she had been asked by the Superintendent to gain access to the

email system. Dr. Kirsch had come upon the fact that the Superintendent had access to

mail meter quite against her will and her reaction was in good faith. Many staff members

and administrators dropped their fears about the Superintendent in the lap of Dr. Kirsch

expecting her to take measures to protect them. After she did so she incurred the wrath

46
of the Superintendent and as a result no one stood beside her to confirm that she was

simply bringing forward what everyone else was thinking and saying.

During the meeting on June 30, 2014 all three Assistant Superintendents in

attendance all agreed that Ms. Purcell should be contacted about his obtaining mail

meter access. Dr. Kirsch called Ms. Purcell who told Dr. Kirsch that someone needed

to call the Board President. There followed a conversation wherein the Assistant

Superintendents the WTA and WAA Presidents agreed that it made more sense to

contact the incoming Board President Dr. Losito rather than the outgoing president Dr.

Littman. Accordingly Dr. Kirsch called Losito and established the meeting.

Dr. Kirsch set up the meeting with Dr. Losito at the specific direction of the

Districts counsel. The conduct that they were concerned about was that of their

supervisor and aside from fearing his reaction they did not have the authority to address

the issue with him and instead of going directly to the Board they sought legal counsel

and followed that advice to the letter. At the meeting Dr. Kirsch told Dr. Losito she did

not want news about the access to get into the media and this is significant, as Dr.

Kirsch had previously warned Dr. Martzloff that another Superintendent in the area had

lost his job in part because it had been discovered that he was accessing his Districts

email. As one of the first things that Dr. Kirsch shared with Dr. Losito this concern

conclusively illustrates that Dr. Kirsch had a good faith belief that the Superintendents

access of mail meter was potentially very bad not for Dr. Kirsch personally but for the

District at large. Dr. Losito herself admitted that it seemed to her that Dr. Kirsch had a

genuine concern about the Superintendents access to the email system. (TR 1948:6-8;

Respondent Brief P-44.)

47
At the hearing, Dr. Losito was an overly coached witness being dismissive of the

concerns raised by Dr. Kirsch at the meeting and summarizing them as being petty yet

the meeting lasted between 3 and 4 hours so there was clearly more to the meeting

than the superficial summary that Dr. Losito provided. Exhibit R-68 is a set of notes Dr.

Kirsch took after the meeting. These notes indicate that Dr. Kirsch shared with Dr.

Losito her belief that the Superintendent would certainly retaliate against her for coming

forward.

It is clear that Dr. Losito seemed to suffer from amnesia during her testimony,

denying any memory of countless issues including whether Dr. Kirsch raised concerns

regarding chain of command within a District, concerns that the Superintendent was

excluding Dr. Balen or other Assistant Superintendents, concerns about lack of

transparency on the part of the Superintendent, concerns regarding the Community Ed.

basketball teams, concerns regarding changing of class lists, concerns regarding the

Superintendents attendance problems, a request that others who brought concerns

forward would be given assurances against retaliation and discussions about the

Murphy case and its significance to the District. (TR 2062-63; 2160:5-10, 20-25).

Apparently Dr. Losito would have the hearing officer believed that during the

course of the meeting that lasted between three and four and half hours, and which then

became the focal point of the big night meeting with Dr. Martzlofft and an emergency

meeting the next day the instant 3020a proceeding and the Federal lawsuit by Dr.

Kirsch she remembered almost no issues that were discussed. This is an insult to

anyones intelligence.

48
As a result of the June 30, 2014 meeting Dr. Losito scheduled an emergency

Board meeting on July 1, 2014. Dr. Losito described the concerns that Dr. Kirsch had

brought to her attention the previous day. On July 8, 2014 Board Member Dr. Littman

contacted Dr. Kirsch to ask her about the concerns she raised to Dr. Losito. On July 9,

2014 Dr. Kirsch emailed Dr. Losito and Dr. Littman thanking them for listening to her

and reminded them of her concern that no one who brought concerns forward would

face retaliation but in the end, all of this was of no avail. (Respondent Brief P-47).

During her testimony Dr. Losito repeatedly stated that she felt the concerns Dr.

Kirsch raised on June 30, 2014 were not urgent yet when asked if the concerns were

minor why did she insist on having Dr. Martzloff and Mr. Schmidt to her house at 11:30

PM that very night to discuss the situation? She dodged the question and did not offer

one logical thought. Dr. Losito testified that neither she nor the Board saw anything

illegal, immoral or unethical in the Superintendents behavior as expressed to her by Dr.

Kirsch. Her definition of these terms certainly needs scrutiny. In the end, the Board

decided to do nothing about Dr. Kirschs concerns because they relegated their duty to

the community and decided instead to behave with unthinking blind fealty demonstrating

unquestioning alignments to the Superintendent despite major concerns on every level

of staff in the District. In other words the board failed their staff and the taxpayers

utterly.

Dr. Kirsch is a whistleblower plain and simple and regardless of the ultimate

accuracy or merits of the underlying complaints, a whistleblower must be protected from

retaliation. It would be a travesty if the Superintendent and his blind supporters on the

Board were allowed to carry out exactly the type of retaliation that Dr. Kirsch knew he

49
would attempt when she went to Dr. Losito good faith at the direction of counsel June

30, 2014. (Respondent Brief P-49).

District Argument

Mismanaging The Human Resources Office

The District argues that Respondent Kirsch is guilty of mismanaging the Human

Resources Department and raised 11 different issues or specifications regarding failed

management of the Human Resources office. They pertain to Kirschs failure as head of

the Department as well as her inability or unwillingness to implement, oversee and/or

attend to critical programs and duties in her area of responsibility. By and through her

mismanagement of the Department she brought significant harm on the Department

which was her sole area of responsibility in the District and otherwise betrayed the

needs and goals of the District as a whole. Most if not all of the conduct charged against

Respondent in this regard was unknown until the investigation into her conduct began in

June 2014, when one individual finally felt able to raise the alarm, but only after she

retired from the District. (District Brief P-66).

Some of the duties of this Department head include: maintaining current records

for all District personnel; assuming responsibility for payroll policies and procedures;

interviewing applicants and recommending appointments to the Superintendent;

ensuring compliance with state and federal statutes, policies and regulations;

investigating matters pertaining to employee misconduct; and performing tasks and

responsibilities as directed by the Superintendent.

50
A major theme from Respondents defense of the charges consists of blaming

someone else for her failures for the problems existing in the Human Resources

Department. The failure to input and upload professional development hours for

professional staff (175 hours) happened according to Kirsch because Janice Rovner did

not enter and transmit the information to SED. She blamed various payroll failures in her

Department on Mary Gangloff also an employee of the Department. She argued that the

employees, not the managers in the Human Resources Department created the stress,

tension and friction or were spurred on by Rovner, Gangloff, and/or Lynn Clark and

others. Not once during the hearing did she truly acknowledge or much less accept

responsibilities for deficiencies in the operations of the Human Resources Department.

This is astonishing and demonstrates that she did not understand or accept her

obligations as head of the Department.

The first hearing officer appointed to this case, Paul Caffera, summarized the

appropriate perspective with regard to the charges and specifications on Kirschs

management of the Human Resources Department. Addressing a question related to

failures in oversight and management of the payroll function in the District and in

particular regarding the certification of payrolls required by law, hearing officer Caffera

observed:

In the end, while authority can be delegated, responsibility cannot. So, there are
a number of responsibilities that fall within any Department, then Department is
responsible for all those duties being carried out, whether or not theyre granted
the authority to others to perform those duties. (TR P. 2614).

The District submits that Respondent cannot escape culpability for the failings of

her Department even when the duty was to be formed by somebody else. The District

submits that any one of the charges and specifications addressed in this section

51
warrants her discharge. Viewed together with all of the other charges and specifications

in this case we submit that termination is the only reasonable outcome. The District

charges Respondent with Incompetence and Neglect of Duty with regard to her

mismanagement of the Department of Human Resources which included charges and

Specifications 1-18, 3-16; 1-19, 3-17; 1-20, 3-18; 1-21, 3-19; and 1-22, 3-20.

In May 2014 Ms. Rovner, Kirschs confidential secretary decided to retire from

the District. Rovner at hering testified:

I couldnt physically take the stress or the tension that occurred every
single day in HR.

Following her retirement she contacted District Board President Michael Littman

to advise him of Respondents conduct, informing him that conditions in the Department

were untenable, that she felt harassed by Respondent and that as a result she decided

to retire sooner than she intended (TR P. 3891; 3890-94; 3945-47). Her retirement was

quickly followed by another retirement in the Human Resources Department by Payroll

Supervisor Mary Gangloff in June 2014, who also retired earlier than she planned (TR P

2933.)

Rovner told Mr. Lipman about Kirschs handling of her employees at a retirement

party for all District employees in mid, June 2014 and soon thereafter he informed the

Superintendent that two employees claim Respondent was creating a hostile work

environment and retired early to escape the harassment (TR P. 3896-97; 3314-15).

As a result of the complaint against Respondent the Superintendent opened an

investigation and then determined that he needed to obtain an outside party to evaluate

claims against Kirsch to determine whether a hostile work environment existed. (DX 2);

TR P. 3319-20.) Accordingly Philip McIntyre a retired attorney with more than 20 years

52
of experience in employment discrimination and harassment claims in investigations

was retained by the District to conduct an investigation into whether a hostile work

environment existed in the Department. TR. 3785 86; DX 98 (District Brief P-69).

While Mr. McIntyre concluded that the problems in the Department did not implicate

laws concerning harassment or retaliation or applicable District rules and policies

concerning the same, he found the management of the Department including Kirsch

failed to address and resolve the friction and divisiveness resulting in tension from the

foregoing in the Department (DX 98).

He cited further a lack of communication between management of the

Department and the staff resulting in employees not knowing what their duties are, how

they fit into projects or what would be happening in the Department. The items cited by

McIntyre about the mismanagement of Human Resources following his investigation -

discontent and conflict, poor communication, inability to solve or correct interpersonal

problems, among the issues-were fully substantiated by witnesses who testified during

the hearing. For example Clark testified that she was once called into Kirschs office to

be reprimanded following her comment that she felt there was a lack of communication

in the Department (TR. P 3738). As Clark explained, Kirsch stood up over the desk

and was yelling at me about this and-I was almost in tears (TR P 3739). She further

testified that Kirsch was in her office standing over her desk wagging her finger at her

like a parent saying No when Clark noted that Kirschs door is not always open and

that it took a week to see her about work questions. (TR P. 3739-40).

She also testified that she witnessed Gangloff being marched through the Human

Resources Department on her away to a meeting to be disciplined. (TR P 3776). Clark

53
testified about the atmosphere of intimidation existing in the office that Kirsch and

Grupka, perpetuated a general fear in the office that any one of us there could be

eliminated at any time. (TR P 3781.) Friday firing day, was well known in the office

and as such the attendant fear and worry about what Kirsch might do was completely

reasonable and understandable and it divided and upset the employees in the office

(TR P 3775).

Rovner had one of the closest working relationships with Kirsch serving as her

confidential secretary for seven years. Focusing on the last school year she worked

prior to retiring she testified that the work environment was extremely stressful and

that she and the office were terrified. (TR P 3873.) She described one meeting in

particular with Kirsch in August 2013 where Kirsch, without warning or notice, told her

that she better start looking for another job. (TR P 3880). In that meeting Kirsch

asserted that people were complaining about Rovner and that people were very upset

with her. Rovner said that Kirsch continued to berate her through the meeting. She

stated, I was scared to death. She left the office after the meeting feeling ill, and she

told Respondent she needed to go home. Kirsch did not respond, so Rovner left the

office, was taken to the nurse and sent home for the day. (TR P 3881). Kirsch never

inquired as to how Rovner was feeling thereafter (District Brief P. 71).

Gangloff in particular bore the brunt of Kirschs attack-style employee

management. Like Clark, she described an awful work environment imbued with fear

and intimidation where it seemed every mistake that was allegedly made was

catalogued and put into numerous counseling memorandum (DX 49-57; TR P. 2850).

She also complained of disparate treatment including some employees being permitted

54
to come and go without regard to time spent on brakes or eating at ones desk, or

personal use of District equipment, as well as certain employees not being counseled

for similar infractions. (TR P 2859-65). Gangloff like Rovner had a very good

performance record as Payroll Supervisor prior to Kirsch taking over as Department

head (DX 59 61; TRP 3862).

For both employees positive performance reviews continued into the early years

of Respondents term as head of Human Resources. For Gangloff, things turned sharply

negative in August or September 2012 when she advised Kirsch and Grupka, that

Grupka, was not performing her duties as the certifier of payrolls, which she was

appointed to do on or about July 1, 2012 and for which she was given an additional

stipend of $2,500 a year. (DX 46; TR P 2659).

Gangloff then explained that she was thereafter subjected to regular meetings to

review various issues or problems which were claimed she had caused. Gangloff

disputed the facts of these problems and viewed Grupkas aggressive oversight to be

harassment and retaliatory for reporting her to Kirsch. (TR P 2659; 2721) Despite

asking Kirsch to intervene and assist, Kirsch either refused or took Grupkas side. To

Gangloff, Gropka and Kirsch were railroading her to termination. McIntyre agreed in his

report and testimony that management treated Gangloff abysmally (TR P 3815).

The District notes that Kirsch never brought Rovner or Gangloff up on charges or

otherwise sought to impose discipline for their alleged failings. Rather she kept

employess off-balance with counseling memo after counseling memo or meeting. This

abysmal treatment is her apparent managerial philosophy forcing employees to quit

rather than run the risk of a negative determination at a disciplinary hearing. These

55
actions forced both Rovner and Gangloff to retire rather than continue to be exposed to

constant threat threats of discipline. (TR P 2933; 3891). Both of these women retired

under duress even though it negatively impacted their retirement benefits, including

health insurance. (TR P 2871 72; 3899).

Even Clark who is not ready to retire sent an email to the Superintendent on

August 14, 2014 expressing that she too could no longer work in the Department if the

situation did not improve (DX 97). It warrants emphasis that Clarks email was sent after

the investigation into Kirsch and Grupka, commenced, and after Gangloff and Rovner.

As Clark noted in the email she expected that problems would level out in the

Department during an investigation not get worse (DX 97).

Things started to improve only after Kirsch was placed on Administrative Leave

of Absence (DX 97). That fact speaks volumes to the level of discontent, conflict and

upset coursing through the Department in the last few years that Kirsch worked there.

Her actions and inactions caused this disaffection and divisiveness, which she did not or

could not correct over many years.

To the credit of the Interim Assistant Superintendent for Human Resources,

Larry Militello, both Rovner and Gangloff were hired back to the Department on a part-

time and full-time basis respectfully after Respondent was placed on Administrative

Leave. (TR P 3902-03; 2875-76).

Problems in the Human Resources Department stayed out of public view for

years and were not raised until Rovner retired because of the fear in the office and

because Kirsch strictly prohibited her employees speaking to someone in a position to

intervene, like the Superintendent. (TR P 3890).

56
After Rovner announced retirement, Kirsch did not ask her to stay to train her

replacement nor did she ask her to stay longer as a replacement learns the duties of the

position despite a number of pending projects. In fact she was happy Rovner was

leaving the District and said it the same to Maturski (TR P 5941). The same lack of

transition occurred with Gangloff. (District Brief P 74).

All employees who worked in Human Resources, even Lisa Hinca, Kirschs own

witness agreed that the Department was divided and that there was stress and tension

at work and that there was need for better communications. Despite this, Respondent

cancelled Department meetings, the reason for which ironically was not communicated.

The employees felt this was not a positive development and recommended that there

be better and more regular communications in the Department (DX 98). Kirsch did not

care and the meetings remained cancelled despite obvious disaffection and division in

Human Resources. Given the substantial proof herein above, the District submits that

Kirsch is guilty of the following charges and specifications: 1-18, 3-16; 1-19, 3-17;

1-20, 1-18; 1-21, 1-19, 22; 3-20 (District Brief P-76).

A matter related to the foregoing examples of mismanagement of the Human

Resources Department is the concrete Incompetency and Neglect of Duty

demonstrated by Respondent relative to her inability or unwillingness to oversee the

Districts payroll obligations which is one of the responsibilities of Respondent. (JX2).

The charges and specifications pertaining to this issue are: 1-24; 3-22.

Gangloff testified that prior to Kirschs hiring she worked for Ralph Smith the

District prior Assistant Superintendent and Jim Niemira and explained the very sensible

payroll oversight process employed by Smith. It provided that he would review each

57
weeks payroll prior to issuance of payment to ensure that any potential errors such as

double entry, number transposition etc., were caught before the payroll was submitted

for payment. (TR P 2559-62.) Gangloff described it as a second set of eyes since as

Payroll Supervisor there was no one above her to check her work in the event she

made a mistake. When Gangloff advised her of the long-standing practice (TR P 2563;

2568), she testified that, Kirsch said, that was Ralph; were not doing things that way

anymore. (TR P 2566). In 2013 there was a substantial tax overpayment to the State

of New York occurring as a result of a data entry error by Gangloff. (RX 3; TRP. 2699).

No one, including Kirsch, had reviewed Gangloffs work (TR P 2699-2702). While the

tax overpayment was returned to the District, Kirsch undoubtedly saw that mistake as

another example of Gangloff failing as Payroll Supervisor. Rather than understanding

that not having a second set of eyes and not having a final check prior to disbursement

of funds was the true cause of mistakes that were pinned on Gangloff, it is fairly

shocking that Respondent, as the last responsible party for the issuance of millions of

dollars of payroll in the District, never insisted on or engaged in a review process for this

very important task. Kirsch then requested a special audit report to be performed of

payroll, yet learning of deficiencies in process, she did not see it necessary to

implement those recommendations (TR P 5908-09).

It is incontrovertible that amongst other things that the Department of Human

Resources incorrectly issued an overpayment to the State and that biweekly payrolls in

the Department were not certified in a timely manner or at all in some cases as is

required. (RX3; DX 45). Kirsch was aware of these issues but failed to implement

58
needed procedures and practices to ensure errors were caught prior to issue of

payment even after the Toski Report recommending such procedures was issued.

Kirsch was responsible for overseeing the process for reporting professional

development hours and she communicated this to the staff that the District would submit

development hours to NYSED each year, consistent with the applicable regulations.

(DX 16). The June 2013 memorandum contained in DX 16 sets forth certain information

from Kirsch to all teachers with professional teaching certificates on the recording and

reporting of professional development hours.

Following Kirschs placement on leave, the District learned from one of its

employees, Linda Ruest, about her concerns the District had not been reporting

professional development hours to SED in accordance with the regulations. She served

as the instructional support specialist for the District, involved in teacher training and

professional development. Over the years she had been contacted by teachers who had

questions when their professional development hours were not recorded or reported by

the District to SED. (DX 16/17; TR P 589). One teacher in particular noted that no hours

were reported to SED on his behalf and his five year window was expiring (DX 17). This

was a regular issue which Ruest confronted. She had earlier mentioned this to Kirsch

and it was her understanding that Human Resources would be taking care of these

issues. (TR P 593 94).

When Mr. Militello was appointed Acting Assistant Superintendent, Ruest

advised about this issue and in September 2014 they began to look into how many

teachers had not had their hours reported annually as required by the regulations and to

prepare a process to upload all completed hours for all affected personnel. Ruest and

59
Militello with others compiled the data and information coordinated with the Districts IT

Department and worked to upload and report the total number of professional hours

required to SED (TRP 612, 619; DX 20 A, B, C).

As Ruest explained more than 170 individuals were affected by the failure to

report professional development hours on an annual basis and more than 10 had gone

past the five-year mark set forth in the regulations (TR P 6; 28-30). Each such individual

was potentially subject to loss of his or her professional certification. (District Brief P-82)

Kirsch offered many excuses for her failure to report the professional hours and

never acknowledged that her oversight on this issue was faulty and that she plainly

failed to create a system to ensure regular and timely compliance with the regulations.

She blamed Rovner after failing to ensure the reporting was completed (RX 89),

although she also admitted she did not train Rovner to set up a system for compliance

with the regulation (TR P 5872-63). She claimed that when she lost John Wolski a

Budget Analyst in her Department this impeded the collection and reporting of the data

annually. However he left the employment of the District in 2011 and as far as he knew,

he left District IT with a plan for uploading of professional development hours for all

affected staff and Kirsch was aware of this (TRP 6133; 6145). Kirsch also argued that

SED was not monitoring professional development hours and was otherwise

unconcerned with whether District reported professional development hours for certified

professionals notwithstanding the regulations mandating the same (TR P 5350). Kirsch

went so far as to suggest that she had the blessing of everyone at BOCES and, or

some unnamed individual from SED, supporting her decision not to report the hours

annually or at all (TR P 5351). One of the witnesses presented by Respondent on this

60
point agreed with that claim. However an email dated May 24, 2012 Janice Kilijanski

from Erie 1 BOCES, advised Kirsch that SED insisted that Districts must maintain

compliance with the reporting requirements (RX 96). The District submits the Kirsch is

guilty of charges and specifications 1-24, 3-22.

Near the close of the 2013-14 school year the District decided to add a new

teacher at Forest Elementary School for a Special Education class that would work with

a new class with some new students coming to the building. The District wanted to have

the teacher in place and setting up the class in the summer to assist the entry of these

new students and families. However Kirsch failed to complete the job offer in a timely

manner causing charges and specifications 1-25, 3-2 3.

Principal Keith Wing testified on behalf of the District and explained that the

District created a new 12-1-1 Special Ed class at Forest for the 2014-15 school year for

students with certain special needs (TR P 1510). He testified that for the year prior the

District had created a similar class and that the late-summer hiring of that teacher in

2013 caused some problems and concerns, especially since that class like the one he

added 2014 included students and families new to the District (TR P 1509).

As a result of the issue from 2013 Wing spoke with Dr. Cieri, Assistant

Superintendent of Exceptional Education and Student Services for her support to move

the hiring process more quickly. The District conducted the interview process and then

finalized the recommendations for the teacher to be hired in late June 2014. The

teacher recommended for hiring was a current employee District serving as a teacher

Assistant. In her role Respondent conducts the final recommended candidates and then

61
submits the names to the Superintendent for a recommendation for hiring to the Board

of Education (JX 2).

Because he had planned with Dr. Ciero to bring the teacher in earlier than normal

Mr. Wing sent the recommendation and material for the hiring of the teacher June 2014

to Kirsch advising her of the need for an expedited process (TR P 1534-35). Despite

this request to hire this individual quickly, Respondent did not move promptly. She first

advised Wing that the papers could not be located (RX 18). She then claimed that the

teacher is not certified for the position to which shed been hired because of the

expiration of one of her certifications as of August 31, 2014. (TR P 1539; RX 19) Even

after the paper was submitted Respondent did not submit the recommendation to hire

the teacher until the August 12, 2014 Board Meeting. As Mr. Wing explained all the

documents and evidence show, parents were very concerned and upset that the

teacher hiring had not occurred when it had been promised. (DX 34).

The excuses Respondent offered in response to this issue do not withstand

scrutiny. Even if the District accepted the truth that the papers were delayed in transit or

somehow misfiled, resulting in a delay which was not Respondents fault Rovner

recounted an incident in which she stated Kirsch lied about having lost the

recommendation papers of another teacher involving a different principal (TR P 3908).

Kirsch still did not properly attend to the processing of the recommendation of the

teacher at Forest Elementary though she knew it was requested by staff. It may have

been that she did not like Keith Wing because of his connection to the Superintendent

as that they worked together at a prior School District. Most likely in June and July

62
Kirsch was bogged down by meetings and communications with the WTA and the WAA

in efforts to attack the Superintendent and Board of Education. (District Brief P-86).

Kirsch also claimed that because the teacher certification in one area would

expire on August 31, 2014 the teacher could not be hired even though there is no

written policy or rule supporting this assertion (RX 13a). She argued also that the

teacher hiring policy in the District prohibits such an offer from being extended, but the

plain language of the policy does not support her claim. Not completing the hiring

process in a timely manner is Incompetence or Neglect of Duty and given the foregoing

Respondent is guilty of the charges in specifications 1-25, 3-23.

At some point in the Fall of 2013 the Superintendent suggested that the

Technology Integrators document various activities throughout the District and prepare

images or videos for highlighting the great things being taught and accomplished in the

District. For those times when the Tech Integrator worked outside the normal school day

the Superintendent advised the Tech Integrators that he would authorize payment for

performing those duties. When one of the Tech Integrators submitted a payment

request to the Human Resources Department for performance of these duties

Respondent failed to resolve the matter notwithstanding the Superintendents request

and directive. The charges and specifications an issue here are 1-13, 3-13, 4-10.

When one carefully examines the timeline pertaining to this incident

Respondents guilt becomes manifest. The Tech Integrator who requested payment for

the duties he performed is Ostafew who was hired in the District on or about November

2013. His presence in the District was noteworthy to some, who knew Ostafew worked

in the Byron-Bergen School District with the Superintendent several years prior and thus

63
believed that he was somehow too close to the Superintendent or was otherwise not

trustworthy (TR 1355; 1362). It warrants mention here that he was the overwhelming

consensus pick of the committee that conducted the search to fill the position and had

worked in that position at Byron-Bergen. On or about March 21, 2014 he submitted 2

claims to Human Resources seeking compensation for duties performed at two District

events after the school day, which duties were requested generally of all Tech

Integrators by the Superintendent (DX 30, 31, 89).

A few days after receipt of the claim forms Kirsch advised the Superintendent

that there was no mechanism to pay him for the duties performed (DX 89). In response

the Superintendent explained the importance of the activities to the District and on

March 26, 2014 instructed Respondent to speak with the Teachers Union to work on an

agreement to pay the Tech Integrators for the work performed (DX 89).

Less than a few days later on March 31, 2014 Michelle Licht informed the

Superintendent that she believed that the Tech Integrators were working outside the job

description and she was instructing them that if they did the same, they would not be

compensated for the duties (DX 90). While referencing that she was approached about

the possibility of creating an MOA, Licht did not produce any union proposal or suggest

a counterproposal. Her testimony at the hearing confirms that Kirsch never prepared a

proposal and that she never received any proposal in writing from Kirsch (TR P. 1253)

A week later on April 8, 2014 Licht and Kirsch exchanged emails discussing what

happened during the meeting when: you (Kirsch) let someone know he wouldnt be

paid. DX 27. Ostafew testified his meeting with Kirsch occurred on April 3, 2014. As

64
indicated in the email exchanges this meeting occurred after Licht and Ostafew met on

the same matter on April 2, 2014 (TR P. 1401. District Brief P-88).

Given the foregoing timeline for March 26 to April 1, it is clear that Kirsch did not

attempt to reach agreement with the Teachers Union, never submitted a written or

verbal proposal to the WTA, nor seeking a counterproposal, nor engaging in any of the

expected actions when a party is actively and in good faith attempt to reach agreement.

On March 31 she emailed various documents and emails to her personal email

account on the matter (DX 89, 91, 92). On April 1, 2014 at 7:30 AM she emailed

Grupka a question about Ostafews claim forms advising that this is not getting paid.

(DX 113). Nothing that Respondent did in response to the claim supports her argument

that she tried to reach an agreement but that the WTA refused and no evidence

supports her assertion either. She never drafted a proposal and a few days later

advised that he would not be paid.

Much like the circumstances of hiring a new teacher at Forest Elementary it

appears that Kirsch did not diligently work to reach an agreement on a stipend for Tech

Integrators because of a perceived relationship between the Superintendent and

Ostafew. Sending the related paperwork to her home which is part of a separate charge

in this proceeding reveals her bad faith with respect to following through on the

Superintendents request to reach agreement with the Union for this work by these

employees. The facts show Respondents Incompetence, Neglect of Duty or

Insubordination in the handling of this issue and is clearly in violation of specifications 1-

13, 3-13, 4-10. (District Brief P-89).

65
In May 2014 Respondent was informed by Larry Militello then a Principal at

Country Parkway Elementary School that one of his teachers was possibly working as a

tutor, performing instructional duties, while she was absent on paid leave from the

District, purportedly unable to work at all. Respondent advised Militello that the District

did not look into such issues (DX 1). During the hearing Respondent admitted that she

did not in fact open or conduct an inquiry into the question. (Specifications 1-14, 2-10,

3-14, 4-11, 5).

Prior to the 2013-14 school year a teacher at Country Parkway Elementary

advised the Human Resources Department that she was unable to work at all (DX 120).

During the school year Militello received information that (Teacher A) was not totally

disabled but was working as a tutor while on paid leave from the District (DX1; TR P.

3410). Militello advised Respondent of the issue and his concerns in this regard on or

before May 14, 2014 (DX 121). He asked whether an investigation into Teacher As

leave and actions leave should be conducted. In response Respondent stated that the

District did not look into such matters (DX 1; TR P 3410). The Superintendent was

informed of Kirschs response and included this item in his 2013-14 performance

evaluation of her (DX1). In the evaluation the Superintendent expressed concern that

Respondent refused to examine the matter and that she claimed the District did not

conduct staff investigations for off-duty conduct when it had done so with other

employees (DX1; TR P. 3411).

At hearing Kirsch claimed in response that the documentation she received

concerning Teacher A stated that she could not work at Country Parkway Elementary

because of a dispute with Militello her Principal (TR P. 5273-74). Review of DX 123 data

66
and records concerning (Teacher A) conclusively established that (Teacher A) was

found unable to work in any capacity by her physician (DX 120 P. 2; no work; 100%

total temporary disability). The records do not state that (Teacher A) was otherwise

able to work either for personal gain or in any other District location.

Kirschs steadfast insistence that (Teacher A) could work but not at the school in

the District in the face of clear evidence to the contrary, is baffling. If this were the case,

then why did Kirsch not craft an accommodation to ensure the teacher could still work at

another building in the District. The District submits that Respondents refusal to

conduct the investigation of (Teacher A) had to do with her unwillingness to assist a

Principal with a good relationship with the Superintendent. Respondent engaged in

express favoritism with regard to certain employees of the District with whom she was

close and froze out those who she perceived to be friendly or allied with the

Superintendent. This incident in May 2014 follows her abject refusal to craft an

agreement for the Technology Integrators, because of the belief that Ostafew would be

one person to gain from it and just before Wing requested- with Dr. Cieris agreement-

in June 2014 that Respondents office fast-track the hiring of a new teacher for a new

class in the District. Neither of those other items was attended to as expected or

requested. Respondents excuses at hearing do not stand scrutiny. And accordingly the

District submits that Respondent is guilty of specifications 1-14, 2-10, 3-14, 4-11, 5-1.

(District Brief P. 91)

The Williamsville Central School District is generally regarded as the preeminent

School District in Western New York and it is highly regarded in the State of New York.

The District aims to maintain that position by setting the highest standards in education

67
and adhering to best practices with regard to its students and its employees. Whether

measured through treatment of her staff, failures regarding payroll, noncompliance with

mandatory regulations, or inadequate training to ensure smooth transitions and

operations, or otherwise, Respondent did not meet the standards set by the

Superintendent to modernize the Human Resources Department or to employ best

practices consistent with the District philosophy. The charges at issue here are 2-15,

5-6 (District Brief P 91).

In his annual evaluation of Respondent 2013 and 2014 (well before these

charges were preferred) the Superintendent raised concerns and noted areas of focus

for Kirsch to address in the Human Resources Department in order to ensure that the

District focuses on best practices as it relates to Human Resources so we continue

to be the leader in New York State (DX 1, 2). Despite being directed to focus on best

practices Kirsch did not meet the Superintendents command (DX 2). She did not

improve efficiency in her Department or clarify roles and expectations. Gangloff, Rovner

and Clark all testified to the same. Clark testified that she did not know one week to the

next what was expected of her as Kirschs wishes on how matters would be handled

with change. (TRP 3553 55). Gangloff similarly explained that she needed support in

payroll processing and oversight and that she told Kirsch that Grupka, nominally directly

supervising Gangloff was not performing necessary functions (TR P 2566; 2659). These

efficiencies were never corrected. Likewise, Gangloff testified that Kirsch did not employ

any system at all to check her work, week to week in payroll and that this status lasted

for more than six years from Kirsch being hired. (TR P 2563-66).

68
The Superintendent also told Kirsch to hold monthly meetings to communicate

plans or address employee concerns. (DX1). This directive fell on deaf ears as Kirsch

canceled regularly scheduled monthly meeting which caused considerable strain in the

Department. Every witness who worked in Human Resources including Kirschs witness

Hinca agreed that communications was nonexistent and that regular meetings would

improve coordination and completion of tasks; This is also confirmed by McIntyres

investigative report (DX 98). The refusal by Kirsch to improve the Human Resources

Department also resulted in significant dissatisfaction in the workplace causing two (2)

employees to retire early and one (1) who nearly quit in August 2014. (DX 2).

Kirsch utterly failed to ensure regular compliance with the recording and reporting

of professional development hours (175). She did not prepare any training for exiting

personnel who may be considered for promotional opportunity as building leaders,

which the Superintendent requested (DX 2). Kirsch refused the suggestions and

changes offered by the Superintendent for a year and more. (DX 1). The District

submits that she is guilty of specifications 1-25, 3-23.

The evidence demonstrates that Kirsch was woefully neglectful or incompetent in

carrying out her duties in the time period leading up to her placement on Administrative

Leave. She also committed acts of Insubordination and Conduct Unbecoming an

Assistant Superintendent. The District respectfully submits that the violations described

herein which have been proven in this case, whether standing alone or taken together,

warrant dismissal of Respondent from her position. It cannot be doubted that the totality

of the violations established in this case mandate termination of Respondent from the

District.

69
Respondent Argument
Mismanagement Of The Human Resources
Department-Work Environment Claims

These charges allege that Dr. Kirsch failed to manage HR adequately, causing

discontent (1-18,3-16) failed to manage HR adequately, causing employees to leave

the department due to her lack of management (119, 317), failed to interact with

staff to correct interpersonal problems (122, 320), and failed to communicate with

staff regarding assignments, resulting in low morale (121, 319) (Respondent Brief

P.127).

There is no evidence in the record that Dr. Kirsch failed to manage HR

adequately or failed to communicate with staff regarding assignments. The charges are

nothing but a bad faith attempt by the District to attack Dr. Kirsch for the significant

performance and attitude problems of two former employees Mary Gangloff and Janice

Rovner. These problems were well known to the Superintendent prior to June 30, 2014,

and the Superintendent was never critical of Dr. Kirschs handling of any employees

prior to that date. The Districts attempt to portray its insubordinate former employees as

its heroic victims is proof of its retaliatory animus directed at Dr. Kirsch. The only true

victim in this case is Dr. Kirsch as the friction and divisiveness was directed at Dr.

Kirsch not created by Dr. Kirsch.

It is indisputable that Mary Gangloffs performance and attitude to her

supervisors were unsatisfactory as a subordinate (D 49) (disregarding the chain of

command; Exhibit D 55 (mistakes, tardiness and bad attitude); D 56 (attendance

and punctuality misconduct, carelessness and lack of attention to detail, and

insubordination) (D 57) (refusal to research payroll records at the request of the

70
supervisor) R 27 (discussion of performance issues on October 24, 2012) (R 29)

(discussion of performance issues on November 13, 2012.).

At hearing, Dr. Cieri testified that she had experienced difficulty with Gandloffs

performance specifically in her work on federal grants and that she held meetings with

Gangloff about the problems yet some of those continued to the present (TR 4129; 7).

Concerns about her work were brought to her supervisor Patty Grupka, and her

predecessor supervisor Mr. Nemiera (TR 4174:913).

The shortcomings of Miss Gangloffs work and attitude were well known to the

Superintendent. In fact he authorized the withholding of her raise pursuant to a contract

provision which authorizes the Superintendent to withhold a portion of the salary

increase due to an unsatisfactory written evaluation (R 26). Dr. Kirsch kept the

Superintendent informed about counseling memoranda issued to Gangloff in a

September 6, 2006 email and she advised the Superintendent that Ms. Grupka issued a

counseling memorandum to Gangloff as the continued result of her inability to

respect/understand that Ms. Krupa is her supervisor Mary thinks Ms. Grupka is her

coworker. R 54. Similarly on August 2, 2013 Dr. Kirsch advised Dr. Martzloff that

Grupka, has written numerous memos to Miss Gangloff in the last year and had weekly

meetings with her. She then wrote that the next step would be to put Gangloff on paid

leave (R 55).

Thus it is clear that Dr. Kirsch did not interfere with Grupkas ability to report

complaints to the Superintendent if she so chose to do so. The Superintendent knew

that there were performance and attitude issues with her as early as September 2017.

TR 3606:9 10. Dr. Kirsch told the Superintendent that she wasnt a positive influence

71
on the office, and Gangloff did not attend to tasks the way that she should. TR 3606; 19

22:3607: 2 6. In fact in August 2013 Dr. Kirsch recommended to Martzloff that

Gangloff should be placed on unpaid leave as part of the progressive disciplinary

process. She was never told that the Superintendent disagreed with her handling of

Gangloffs performance and attitude issues (Respondent Brief P. 128).

The record establishes that Kirsch did everything possible to resolve the issues

with Gangloff. Kirsch even enlisted the assistance of Dr. Elizabeth Bradley who has

been a consultant for the District since 2006, (TR 5980:14-16) to attempt to find

solutions for the difficulties with Gangloff. Dr. Bradley testified that Kirschs approach to

dealing with Gangloff was sincere in trying to get help for her To improve her

performance. (TR 5960:1219). Dr. Bradley said that she did not believe that a lack of

communication in the department was a problem with Mary. The problem Dr. Bradley

concluded was that Mary never believed that she did anything wrong. Mary always felt

that she was an excellent employee and doing an excellent job and she denied the facts

that were given to me about performance issues. (TR 5961 1719; Respondent Brief

P.129).

Janice Rovner presented similar issues. Dr. Cieri testified that concerns about

Rovner preceded Dr. Kirsch and that those concerns were discussed at a leadership

team meeting. TR 4134:13. Dr. Kirsch counseled Rovner for improperly assigning work

to the reception person without clearing it with Dr. Grupka who supervised the reception

person. TR 4890:12-25. In a January 2012 meeting with Miss Rovner, Dr. Kirsch cited

Rovners argumentative and disrespectful commentary during a board agenda

meeting. R 60. At the hearing Rovners insubordinate attitude was on full display when

72
she stated that she was on the equal level with Dr. Kirsch. (TR 6288.22). Dr. Martzloff

often sarcastically referenced Miss Rovners statement by telling Respondent there

goes your equal, Dr. Kirsch. (TR 4135:24).

Dr. Kirsch testified and understood that there was friction between staff members

in the department before her arrival. She made changes and responded to complaints in

order to improve the operation of the department. For example when she first arrived

the layout of the office was very open and there was a lack of privacy. (TR 6209 10).

At that time the file cabinets were around the perimeter of the room and the staff had

complained that it was very noisy in the office because they were all in the same

common area. (TR 4820:414). As a result of the privacy and noise issues Dr. Kirsch

had the file cabinets placed in the office and also created a reception area so visitors

could be directed to where they needed to go and would not be privy to confidential

matters (TR 6212). There was a floor plan that was shared with the staff and staff were

able to give their input. Dr. Kirsch asked the entire department in the staff meeting for

input on positioning new furniture to the office. Once it arrived the new furniture was

placed exactly where the staff members collectively had decided it should be. There is

no evidence that the office layout had a negative impact on anyone in the HR

department. (TR 6213:725).

Dr. Kirsch was always focused on improving communication in the department.

She was very interested in having her door open in the office because when she

arrived it was communicated to her that the door was closed a lot. Miss Hinca testified

that Dr. Kirsch did have an open door policy and that her door would only be closed if

she was on a call in a meeting or eating lunch. Shortly after receiving Dr. Bradleys

73
report Dr. Kirsch told Dr. Bradley that she was interested in having some training done

of the whole department on working together better as a team, communicating more

effectively as a team. It was suggested that this take place during the following summer

but it never did because Dr. Kirsch had been placed on leave by then. (TR 5971).

As Dr. Kirsch testified, she made every effort to improve office morale and stated

that there were activities in the office to enhance morale, including an off-site Myers

Briggs activity and social events including lunches purchased by Dr. Kirsch and Dr.

Grupka. (TR 6235:25).

The complaints against Dr. Kirschs mismanagement are unsupported by facts,

are trivial at best, and not supportive of any 3020a charges. Miss Clark testified that the

Human Resources Department was a good strong department by and large about six

months before her complaint to Dr. Martzloff in August 2014. Ms. Clarks complaint is

devoid of any substance whatsoever regarding Dr. Kirsch and contains no factual basis

for the hostility that she alleged. This does not come close to substantiating any 3020

a charge. (Respondent Brief P. 130)

Gangloff complained about the sign in/out procedure falsely alleging that she was

required to sign out to use the bathroom. The sign in/out sheet was implemented

because both Dr. Smith and Dr. Martzloff were concerned about not being able to

contact staff when they calleda the department, and because Dr. Kirsch needed to

know where people were and be able to ensure that there were other staff to answer the

phones. In the 2013 14 school year after trying a magnetic board and a marker board,

Dr. Grupka, placed a sign in sheet at the reception desk so that if staff were leaving the

department office they would know when they were leaving and where they were going.

74
There was no direction that employees had to sign the sheet when they were going to

the bathroom. Further, there is no evidence that the sign in/out procedure had an impact

on office morale (TR 6221:4).

Regarding the Toski report, Dr. Kirsch requested that one of the District auditors

prepare a report because of the volume of errors occurring in the payroll department on

a fairly regular basis including IRS miscommunications, and an overpayment to the

State Tax Department. Dr. Kirsch wanted to ensure the sanctity of the payroll system

and to confirm that there was nothing happening behind the scenes that she did not

know or the District did not know. Dr. Martzloff approved the funds to allow an

independent audit of the payroll supervisors work. (TR 5186:1112).

Toski issued his report to Mr. Maturski in April 2014 (R1). Dr. Kirsch did not

receive the report until June 2014 when she reviewed it with the Superintendent and

Maturski. The audit assured Dr. Kirsch that there was no payment exiting the payroll

system for anything other than what it was supposed to be. Implementing the Toski

recommendations in June was complicated by the fact that by June 2014 Dr. Kirsch

finalizing all of the work with a teacher investigation, conducting hiring for the District,

helping the principals with the staff, and making recommendations for tenure. Dr. Kirsch

and Mr. Maturski determined that the implementation of some of the recommendations

would be coordinated between the two offices. (Respondent Brief P131).

Regarding the McIntyre report, the Superintendent hired Philip McIntyre to

investigate Dr. Kirsch in retaliation for her June 30, 2014 meeting with board member

Patricia Lucido. The Superintendent could not recall when he decided to investigate Dr.

Kirsch R 99 at 121:1 3, but all of the evidence demonstrates that the investigation

75
was not initiated until July 2014. The Superintendent testified that the first time that he

met or spoke with McIntyre about the investigation was in early July 2014. (R99 at

110:1415; 117:79). Dr. Martzloff kept the board in the dark about the hiring of Mr.

McIntyre and the results of his investigation. According to Dr. Losito the board was not

involved in the hiring of McIntyre (R100). Dr. Martzloff never reported to the board that

he hired McIntyre to conduct an investigation (R100). In fact Dr. Losito testified that

she did not even see the McIntyre report until March 27, 2017 two days before her

deposition in federal litigation (R 100 at 77:911). This is further evidence of the utter

dereliction of duties by the board in this case. (Respondent Brief P. 131).

Mr. McIntyre started his investigation on July 21, 2014 by meeting with Dr. Kirsch

and Miss Grupka, (D 95). He interviewed all seven subordinate employees in the

Human Resources department between July 21 and July 28, 2014. His report dated

July 31, 2014 (D 95) and revised on August 11, 2014 (D 98) did not discuss most of the

negative allegations against the department management because he was unable to

find objective support for some of them and concluded that They derived from the

subjective dissatisfaction of certain witnesses. (D 95). McIntyre also stated that certain

factual allegations by some witnesses were directly contradicted by other witnesses and

therefore he was unable to conclude whether they were factually true or untrue.

(Respondent Brief P 32).

McIntyre concluded that whatever problems existed in the department, they do

not implicate applicable laws regarding employment discrimination, harassment and

retaliation, whistleblowing or bullying. Nor do they constitute a violation of the District

policies and rules of conduct that had been provided to me. (D 95.) What he did find

76
were two broad issues that there were two camps in the department one consisting of

employees who trusted and respected the managers and the second camp consisting of

other employees who do not. As demonstrated by the testimony of Clark, Gangloff and

Rovner on the one hand and Hinca on the other, those camps could be reclassified as

those who are insubordinate and complained about the rules instead of following them

and cast blame on everyone except themselves and those who show up to work to do

their job and respected the supervisors. McIntyre opined that there was a lack of

communication in the department and found that similar problems existed in the

department prior to my arrival in 2007 and that interpersonal rivalries and difficulties

back then also cause friction between certain employees and managers.(Respondent

Brief P 132).

His report also acknowledges that Dr. Kirsch and Miss Grupka, tried a variety of

means to instill cohesiveness in the department, such as a retreat, bringing food for the

employees and other attempts at teambuilding, however he also found that a

particularly disaffected employee had departed the department a few months ago. This

is clearly a reference to Janice Rovner who left the department in May 2014. (TR

3869:12). Dr. Kirsch a tenured employee cannot be disciplined for failing to change the

personality and subjective attitude of recalcitrant employees. Although McIntyre

questioned whether there may be something about the current managers impending

cohesiveness, that statement is mitigated by three factors. First his comment is directed

at Dr. Kirsch and Miss Grupka not solely at Dr. Kirsch. In order for it to be of any use in

this proceeding the District would have had to put on evidence on exactly how that fault

was divided between the two managers, but it did not. Second, the statement is

77
speculative and hypothetical and therefore is not sufficiently specific to support a 3020a

charge. Third and most significantly Mr. McIntyre conceded that his investigation did not

disclose any real objective evidence of the possibility that there is any inherent fault in

the managers.

The charges regarding Dr. Kirschs management of the HR department are

neither substantiated nor substantial. For these reasons charges 1 18, 1 19, 1 21,

1 22, 3 16, 3 17, 3 19 and 20 must be dismissed. (Respondent Brief P 133).

District Argument:
Respondent Failing To Perform
The Duties Of Her Position

The record is replete with obvious and undeniable instances in which

Respondent failed, refused, or was unable to perform the duties of her job. It is unusual

that a professional in a high-level position such as Assistant Superintendent would so

brazenly abandon or neglect her duties; however in the context of this case Dr. Kirschs

pattern of failing or refusing to comply with the Superintendents directives is further

evidence of her lack of respect for Dr. Martzloff. In his 201112 end of year evaluation

of Kirsch, (RX 58) acknowledged in relevant part:

Probably more than any other Assistant Superintendent I have relied on Dr.
Kirschs knowledge of our School District in a variety of areas I trust Dr. Kirsch
as advisor and setting our direction as a School District as well as balancing the
psychological safety of people in our organization with accountability for all.
(R58 District Brief P95).

While the Superintendent may have trusted Kirsch in July 2012 as he prepared

that evaluation, it is clear that the feeling was not mutual. By the fall of 2013 at the latest

Dr. Kirsch was arranging clandestine meetings seeking advice about removing the

78
Superintendent from office from outside advisors such as Laura Purcell and Mike

Glover. As Dr. Martzloff noted, whenever he sought feedback, thoughts and advice

from Dr. Kirsch during the 2013-14 school year her response was either to completely

dismiss his request or provide nothing but nominal feedback. In fact, this problem grew

worse over the course of the year and Martzloff observed that it seemed to him that

Kirsch would not provide him with anything that he requested, or, when she did, it would

only be provided in a minimal way. In light of her decision to withhold her services from

the Superintendent in the District she is guilty of Incompetency, Misconduct, Neglect of

Duty, and Insubordination and her employment as the Assistant Superintendent of

Human Resources should be terminated immediately. (District Brief P. 96).

There is no dispute that this HR position is responsible for analyzing teacher

staffing needs providing timely accurate and meaningful data and analysis to the

Superintendent and the Board of Education. Prior to 201314 school year in Kirschs

evaluation in the recommended areas of focus, 201314 school year and her 2012

13 and of the year evaluation (DX2) the Superintendent advised her that he expected

her to formalize processes associated with staffing:

This year Dr. Kirsch and I move staffing to an earlier time. For this coming year
Kim will need to familiarize the earlier staffing plan so that principals are ready to
meet regarding staffing prior to February break. This would also need to include
an agreed-upon template which would allow us to easily identify historical trends
and balance the need to provide elective and rigorous courses with staffing
efficiency. I would like to see this completed by November 1.

In the same evaluation Dr. Kirsch was advised that:

It will be important a plan is developed to address the reports and information


that will be needed for negotiations and other planning areas such as class-size
and staffing. In the recommended areas of focus, 2013 14 school year and
beyond.

79
In the same evaluation he advised Kirsch to:

Continue to focus on long-term planning and possible efficiencies staffing


levels.

However rather than focus on long-term planning and possible efficiencies in

staffing levels or develop a template to allow the District to identify historical trends,

Kirsch actually provided the Superintendent and Board of Education with less

information in the 201314 school year than in prior years. It did the Superintendent no

good to place such emphasis on staffing in the 201213 and of year evaluation (DX2)

as it appears that Kirsch disregarded everything that he said.

Her failure to respond to the Superintendents directives on staffing can only be

explained by: her incompetence and ability to delegate, supervise or manage; her

inexplicable resistance to change, especially if directed by the Superintendent; her

insubordinate dismissal of directions from the Superintendent: and/or her neglecting her

job duties in order to conspire against Superintendent.

It is undisputed that a staffing template was also never prepared let alone

completed by November 1. While the Superintendent clearly requested the data to be

completed by November 1, is undisputed that a staffing template was never prepared

during the 2013-14 school year. Dr. Kirsch never informed the Superintendent that she

was unable to develop a staffing template or that she had problems completing it. It is

clear that Dr. Kirsch intentionally ignored this directive as well as the timeline.

She was asked to produce a staffing analysis for the forthcoming school year that

the District could use to plan and budget. The Superintendent expected that Dr. Kirsch

could analyze different staffing scenarios for the upcoming school year and project

80
staffing needs for the next school year. Not only did Dr. Kirsch not provide the

requested analysis it appears from her testimony that she does not understand the

difference between reporting on current staff assignments and projecting staff needs.

For her failure to comply, she was charged with Incompetence, Misconduct, Neglect of

Duty and Insubordination specifications 1-10, 2-8, 310, and 48.

The Superintendent again reminded Kirsch that he was expecting an analysis of

the change in class-size on staffing in an email sent to her on September 24, 2013. (DX

75). In relevant part he wrote:

Kim 6. I would like to see our current staffing with our current class-size
guidelines. As we project these forward for next year which grade level(s) hold
the most potential for savings in staffing by increasing the class size range by
one student. That is all for now. Scott.

That reminder to Dr. Kirsch did not cause a response from her to take on this

project.

Following up on the directive and Kirschs evaluation, the Superintendent made

repeated request to Respondent inquiring as to the status of this analysis. (TR P 3199

3200; 320609). However Dr. Kirsch never performed such analysis and as a result no

report was ever prepared and the Superintendent had no analysis of staffing scenarios

to provide to the Board for use during the budget process (TR P 320406). Because the

Superintendent lacked information on the impact of a change in class size on staffing he

was not able to make a recommendation to the Board and the Board was not able to

fully consider a change or changes in class-size. (TR P 3210).

Kirschs response to this specification of incompetency, misconduct, neglect of

duty, and insubordination was that this type of analysis (D73) was not needed because

the District made no changes to class-size for 2014-15 (R69 P.3) places the cart

81
before the horse. The District did not decide to change class sizes for 2014-15 because

the Superintendent was unable to make any recommendations about class-size since

he lacked the analysis of the impact of the change in class-size and staffing from Kirsch.

Kirsch deprived the board of their ability to consider a change in class-size for 2014

15 essentially appropriating part of the boards authority for herself. Not only did she

deprive the Board of the opportunity to consider class-size change, she made it

impossible for the Superintendent to advise the board on this issue. This is a part of a

troubling pattern of Kirsch failing to provide the Superintendent with information that he

wanted or needed to counsel the Board of Education. (District Brief P. 100)

The Superintendent testified that he charged responded with the creation of the

staffing template that principles to use to submit student census and course enrollment

data used in determining required staffing levels through WITS and the District has

been going through the same process year after year: requesting principles to report

projected course enrollment by grade level every year. However as it can be seen from

the staffing formats used by the principals from transit Middle and Williamsville high

school, (RX 34, 34a and 35), the data submitted by District principals varies from school

to school and every year the Assistant Superintendent for Human Resources must

format the data, organize it, and then prepare a summary report. If a principal omit

necessary data the Assistant Superintendent for Human Resources must go back and

request data. It is an unnecessarily cumbersome process that begs to be automated.

The Superintendent specifically inquired into the status of the new staffing

template that he charged Respondent with creating in a September 24, 2013 email of

items requesting Kirschs follow-up DX 77. In that email, he wrote in relevant part:

82
Kim,.. 4. What is the status of our new staffing template? I know you did not get
to this last year, but I would like to finalize this soon as principals will be starting
their course sign-ups in December. That is all for now. Scott.

Unfortunately that reminder did not cause Respondent to take on this project. In

response to his direction Respondent had one meeting with an employee for IT about

developing of the application in WITS. One meeting: no follow-up. As a result, no

application in WITS was created. Respondent offered no explanation why she never

sought cooperation or assistance from any of her colleagues in creating this application.

Respondent apparently found the task unreasonable and unilaterally absolved herself of

the duty to implement the Superintendents direction. There was also no effort on her

part to standardize this reporting whatsoever. There is no reason why Kirsch could not

have developed a paper form for principles to use that would standardize reporting. The

closest that she came to standardizing this process was to send out emails to high

school and middle school principals attaching a sample submission from one principal

that she found. (RX 34, 30 4A, and 35). She made no effort to change the system in

place for principals to report staffing needs and made only minimal effort to cause any

improvement. This disregard of the Superintendents directive constitutes misconduct

and in action or inability to assert any effort to implement this directive constitutes

incompetence, neglect of duty. She is guilty of incompetency misconduct, neglect of

duty and insubordination for her inability failure or refusal to: cause a class-size staffing

template to be created; provide staffing reports and District personnel requested by the

Superintendent; provide the Superintendent with an analysis of staffing scenarios;

provide staffing data and related, parented information and causing a staff template

created in WITS. Because of her failure to do so Kirsch is guilty as charged

83
specifications 1-1,2-1,3-1,4-1; 1-9,2-1,3-9; 1 10, 2-8,3-8,4-8; 1-11,3-11,411,4-9; 1-

27,2-3, 3-5.

In her 2012-13 end of the evaluation (DX2) the Superintendent advised

Respondent that:

it will be critical that these new administrators are appropriately trained in


certain areas such as investigations and disciplinary follow-up through with staff,
and that it was time to: begin training sessions related to the learning needs of
our assistant principals and others who we will consider for promotional
opportunities in the future.

In regard to this issue she was charged with incompetence, misconduct and

neglect of duty as set forth in specifications 128, 24, and 3-26. Not only did

Respondent fail to implement the type of training necessary to prepare assistant

principals at the District for promotion to principles in the 20132014 school year, she

had no such training planned for the 201415 school year at the time that she was

placed on administrative leave. (RX 30). As she never implemented a succession plan

identified in (DX 2), she is guilty of these charges. (District Brief P.103).

During the 2013 14 school year Respondent was instructed to work with District

health insurance brokers and explore the high deductible plan options available to the

District. (TR P 330607). The Superintendent saw a high deductible health insurance

plan as an option that might be able to save 15% or more in premiums if the District

could negotiate such a benefit into one or more collective bargaining agreements. He

asked Kirsch to work with the Districts broker to identify high deductible plan options

that the District could use in upcoming bargaining proposals. Because she never follow

through with the request she is charged with insubordination. The Superintendent

testified that in or about June 2014 he ran into Jason Mull a representative with the

84
District health insurance broker in the parking lot outside the school District office. TR P.

3308. During that encounter the Superintendent asked him if there was any progress in

developing high deductible plan options for the District. Much to his surprise Mr. Mull

responded to the Superintendent that he was never asked to look into high deductible

plan options for the District. (TR P 330809).

Kirschs inability failure or refusal to gather information and provide a

recommendation on a high deductible plan option as requested by the Superintendent

constitutes incompetence, misconduct, neglect of duty and insubordination and as such

she is guilty of the specifications 115, 211, 315, and 43.

After an initial investigation into a teachers interaction with her students did not

reveal any wrongdoing, the Superintendent instructed Respondent to install a

surveillance camera in the closet of the teachers classroom. Rather than implement the

Superintendents directive she decided that she would seek a legal opinion into the

Districts ability to conduct the surveillance by video. The Superintendent did not ask

Respondent to put his directive on hold to obtain a legal opinion on something that he

knew from experience that the District had the right to do but rather told her to get a

surveillance camera installed in the classroom and she did not. While Respondent was

researching the law on the subject the Superintendent worked through Assistant

Superintendent Maturski and the Director of Facilities to have a surveillance camera

installed. (TR P. 3675).

The surveillance camera ultimately recorded the teacher engaging in misconduct

which resulted in her resignation from employment with the District and a guilty plea to

criminal charges. Kirschs inability, failure or refusal to implement his directive to install

85
a video surveillance camera in order to protect the safety and well-being of the District

student clearly provides that she is guilty of Incompetence and Neglect of Duty as

charged in specifications 1-3 and 3-3.

Responded is charged with Incompetence, Misconduct, Neglect of Duty, and

Insubordination for inability, failure or refusal to provide the Superintendent with a report

on teacher attendance that he requested in an email that he sent her on September 24,

2013 (DX 75). In that email which was sent with high priority importance he wrote: Kim,

I wanted to share some items that require your follow up. Please provide me with a

summary report of teacher attendance for last school year. (DX 75).

The Superintendent testified that he needed a report on teacher absences given

the ongoing shortage of substitute teachers and that it makes good management sense

to examine the reasons for the absences that caused the need for the substance. He

also testified that he viewed the cost of substitutes and was seeking ways to reduce

them. Kirsch never provided a teacher attendance report for 201213 to the

Superintendent in the 201314 school year nor did she cause one of her employees to

provide the report to the Superintendent. Her response to this charge as defense is that

she believed that the Superintendent had already received this report through another

employee; and the Superintendent did not remind her that he still needed this report. As

a result she is guilty of incompetence misconduct neglect of duty and insubordination as

charged in specifications 1-2, 2-2, 3-2, and 4-2. (District Brief P.107).

Respondent is charged with Incompetence Misconduct Neglect of Duty and

Insubordination for inability failure or refusal to provide a report on the District Driver

Education Program. In an email sent on April 1, 2014 the Superintendent emailed

86
Kirsch the following: Kim, I need to know our enrollment numbers for driver education

for the past three years. In addition, what is the amount of money that the District covers

each year so that it is not covered by the fees paid for by students? Scott. (DX 77.)

Respondent never responded to the Superintendent email nor did she provide

the information that he requested. It was discovered that Kirsch had her assistant

working on gathering the information that the Superintendent requested on April 1,

2014, in June and July 2014. Because the Superintendent did not have the information

requested from Kirsch by the time of the next board meeting as he had planned, the

Superintendent was unable to pass that information on to the board in a timely matter.

Kirsch kept the Superintendent waiting for four months for the information that he

requested. By contrast in June 2014 Kirsch responded to Rita Wolff with the amount

that the District would charge for driver education within 24 hours. (RX 82c). Kirsch also

informed Keith Boardman and Beth Moritz that the Driver Education fee was moving to

$450 for the fall and spring within a week of arriving at that number. (RX 80 2b). This

clearly shows Kirsch made the Superintendent wait months for information requested

from her. She is accordingly guilty of specifications 1-4, 2-3,3-4 and 4-3. District Brief

page 109).

In an email dated April 8, 2014 (DX 79) the Superintendent advised Kirsch that

there was a discussion on possible solutions or improvements regarding the substitute

teacher shortage including the possibility of holding less professional development

during the school day increasing the number of substitute orientations, or hiring District

wide subs. Accordingly he has Kirsch for her thoughts on piloting Districtwide

substitutes for three or four positions in 201415 (DX 79). Kirsch never provided any

87
thoughts on the idea of using District wide subs. While she did not produce a reply to

the Superintendents email she alleges that she advises Superintendent against an

expenditure. She only explained away her lack of solutions by reporting that every

District in the state was plauged by similar shortages. This constitutes Incompetence,

Misconduct, Neglect of Duty, and Insubordination with regard to charges 1-5, 1-26, 2-

4,3-5, 3-24, and 4-4.

There was a significant problem with payroll direct deposit in the Districts final

payroll of the year on Friday, June 27, 2014 which was testified at great lengths to

hearing. In an email sent on June 30, 2014 Superintendent asked Kirsch to reassure

him that the problem with the June 27, 2014 payroll had been corrected. (DX 85) and

Kirsch failed to respond. Thereafter on June 30, 2014 the Superintendent responded to

a June 27, 2014 email from Kirsch regarding the June 27 payroll direct deposit problem

with an email that simply read: Kim. Has this been rectified? Scott (DX 85). Once again

the Superintendent received no response from Kirsch.

The Superintendent thereafter was included as a BCC in a July 11, 2014 email

from Patricia Grupka (DX 86) in which she acknowledged that the June 27, 2014 direct

deposit problem was not caused by M&T bank in essence acknowledging that Kirschs

May 27, 2014 email (DX 85) blaming the direct deposit problem on electronic

processing error by the bank was wrong. (District Brief P111).

On May 1, 2014 the Superintendent sent an email to Kirsch (DX 80) stating:

Kim, please prepare an analysis of all of our paid extra curricular activities.
Include the title, compensation, number of students, meeting dates, minutes if
available, and activities engaged in by the club. We need to see which areas we

88
can constrict and which ones are robust activities. I would appreciate getting this
by June 1st. Scott.

Notwithstanding that she was given one month to gather the data she failed to

complete the task and is in violation of specifications 1-6, 2-5; 3-6 and 4-5. (District Brief

P112.)

Thereafter however Kirsch sent an email to the Superintendent advising him that

her interim secretary was in the process of putting together the information. Rather than

jump on the Superintendents request in May, Kirsch waited until close to the end of

business on June 2 the day after the Superintendents deadline to send an email to all

principals regarding the subject of extracurricular activities (DX 82). Kirsch copied the

Superintendent on the June 2, 2014 message that she sent the principals the day after

the deadline that he requested (DX 82). She is clearly in violation of the specifications

as alleged.

Kirsch committed numerous mistakes in submissions to the Board of Education.

At hearing former board member Michael Littman commented on the failures and

mistakes he saw in submissions by Kirsch to the board (TR 39503959. Notably Kirsch

did not dispute this finding during the hearing effectively suggesting that she was being

held to a different standard without citing competing examples where errors occurred

that were overlooked or ignored. 129 and 3-7. She did not contest this charge and is in

violation of specifications.

Respondent had no desire to make any changes in the operations of the

Districts Human Resources department, even if those changes would be

improvements. She held a fervent dislike of change if the changes were suggested or

89
directed by the Superintendent. By the time of the 201314 school year Kirsch wanted

no part in helping the Superintendent to implement changes in the District and she

withheld her advice and counsel to the Superintendent. It is almost as if Kirsch

intentionally mismanaged the Human Resources department in order to prevent the

Superintendent from implementing improvement in process and procedure. (District

Brief P116)

Kirschs conduct of ignoring, failing or refusing to comply with directives assigned

by the Superintendent is the very definition of insubordination. Her inability, failure or

refusal to perform the duties of her job is de facto neglect of duty. She simply decided

that she would no longer work with or for the Superintendent and in fact she would do

everything she could to undermine and embarrass him. This is an irreparable breach of

her employment relationship with the District. There is no way that the Superintendent

or any Superintendent could ever trust Kirsch and rely upon her to do her job without

eyes on supervision. (District Brief P116).

In his end of the year of valuation of Kirsch (DX1) for the 201314 school year he

wrote:

The first one has to do with timeliness and follow-up when Ive asked you for
feedback, thoughts, action items and have in some cases been completely
dismissed. In other cases I get nominal feedback such as the driver education
one I dont know why that is. It seems to be particularly acute in the last six
months. I dont know if I said something to bother you or offend you or if you
decided to change your approach but it just seems like anything that I would ask
of you either wouldnt be provided or would be provided in a minimal way.
(District Brief P117).

The failures or refusals to perform the duties and functions of Kirschs job goes

far beyond incompetence. Taken in context, Respondents conduct is a breach of her

duty of loyalty to the Superintendent and the District. It is a fundamental breach of her

90
employment contract: Kirsch withheld her services from the Superintendent and the

District effectively terminating her employment. Therefore Respondents termination of

the employment relationship should be made official and she should be found guilty as

charged of the allegations addressed herein before. District Brief (P-117).

Respondent Argument
Regarding Work Environment Claims

Dr. Kirsch denies any wrongdoing with regard to her work environment. Dr.

Kirsch denies any impropriety on her part regarding a teacher who was sexually

molesting a child and other pressing matters that had to be given paramount priority.

During the 2013-14 school year the period when most of the charges related to alleged

delays for failure to perform individual task set, Dr. Kirsch was in the middle of a major

investigation involving criminal activity by one of her teachers involving sexual contact

with a minor student. Ultimately the teacher resigned lost her teacher certificate and her

employment from the District was terminated. There was no wrongdoing on the part of

Dr. Kirsch and here the District is engaging in bad faith by pretending that certain minor

requests made during the 2013-14 school year was simply ignored when they know fully

well that she attended to them all and that a major investigation was conducted.

(Respondent Brief P.138).

Dr. Kirsch is being charged with failing to create a staffing template for class size

for the 2013-14 school year in specifications 1-2.1-27, 2-1,2-3,3-2, and 4-1. They relate

to the creation of a staffing template and a more general allegation regarding the

creation of a staffing template in WITS, the District data system. The record shows that

91
this was an objective that Dr. Kirsch and Dr. Martzloff had both been pursuing for some

time and that Dr. Kirsch had made substantial progress in completing the project before

she was placed on leave. The District cannot force Dr. Kirsch out of the workplace and

then complain that the projects she was in the mist of were not completed. It is clear

from the record that Dr. Kirsch had developed a standardized form for both middle

school principals and high school principals satisfying the standardization element of his

request. Dr. Kirsch testified that after she spoke to Ms. Radice, she also spoke to one of

the programmers but it couldnt be done in time. Therefore the standardized forms in R

34a represented the best of each middle school and high school version and was the

only thing we could do by the time we had a staffing meeting. In summary Dr. Kirsch did

standardize the staffing templates but did not have the technical resources to automate

them before she was placed on leave. These charges should be dismissed.

Dr. Kirsch is charged with failing to provide staff reports, staffing data and

analysis of staff for budgeting purposes 1-9, 1-10,1-11,2-8,2-9,3-9,3-10,3-11,4-8. These

charges allege that during yeah the 2013-14 school year Dr. Kirsch failed to provide

staffing reports of District personnel, and analysis of staffing ratios to provide focus for

the budgeting process and staffing data related comparable information. These reports

represent staffing projections and staffing matrixes. However the record shows that Dr.

Kirsch did everything asked and expected of her in this regard and made all of these

reports available to Dr. Matzloff. Even though Dr. Kirsch specifically advised him in

writing, he apparently did not understand that there was a shared network drive

containing these. This charge should be dismissed (Respondent Brief P. 90).

92
Dr. Kirsch is charged with failing to provide a teacher attendance report 1-2, 2-2,

2-3, 2-4 alleging that on September 24, 2013 she was asked by the Superintendent to

provide a teacher attendance report which she never did. Dr. Martzloff could not point to

one instance when he asked Dr. Kirsch about the status of this assignment. The

implications here is obvious. Dr. Martzloff made a request for a teacher attendance

report in September 2013 and Dr. Kirsch soon thereafter was made to understand that

Patty Grupka, was handling the request. Because Dr. Martzloff never mentioned it again

for another nine months Dr. Kirsch assumed that he was provided with the information.

The teacher attendance report was not a real concern during the 2013 14 school year

or else he would have mentioned it again. Dr. Martzloff needed a cover story for his

desire to retaliate and went back to find any possible issue he could against Dr. Kirsch.

The charges are completely in bad faith and should be dismissed.

Dr. Kirsch is charged with failing to provide a report regarding Driver Ed Program

1-4,2-3,3-4, and 4-3 alleging that on or about April 1, 2014 she was asked to provide a

report on the Driver Ed Program which she never provided. In his email to Dr. Kirsch

(D-77) he wrote I need to know our enrollment numbers for Driver Education for the past

three years. In addition what is the amount of money that the District covers each year

that is not covered by fees paid for by students. The next day Dr. Kirsch responded (R-

37) stating that the District hires the classroom instructor for $1260 in additional monies.

This was response to the first question. Thereafter Dr. Kirsch testified that she provided

Dr. Martzloff with additional information as she was working on it, including at the April

2014 leadership team meeting. (TR 5101:23-5102:9). However because Dr. Kirsch was

placed on leave just two weeks after correspondence from the New York State

93
Education Department dated July 29, 2014 there is nothing further in the record on this

chain of events. There was no deadline in his request. For these reasons, these

charges should also be dismissed.

Dr. Kirsch is charged with failing to provide a review of substitute teacher training

and lack of sufficient substitutes and failing to address substitute teacher shortages

1-5, 1-6, 2-4, 3-5, 3-2, 4-4. There are two issues involved in these charges, one is that

Dr. Kirsch alleged failure to solve the endemic and statewide problems that there were

simply not enough substitute teachers to cover the needs of public schools in New York

State and the second is that Dr. Kirsch did not run enough substitute teacher training

sessions. Dr. Martzloff admitted that it was in fact common in other Districts in western

New York State that there were problems in filling all the substitute teachers. Dr. Kirsch

is being brought up on charges for not solving a global problem that affected the entire

region. Dr. Kirsch did attempt to alleviate the problem. In a May 2014 email (D-126) Dr.

Kirsch addressed the issue with Dr. Grupka, stating I have supported Lynn Clarks

assertion that we dont need to run more sub intakes, but also in my help to see how

many she ran to see if we do things differently. So Dr. Kirsch did abide by the

Superintendents suggestion that more classes should be run.

Once again what Dr. Martzloff did was clear that he decided to retaliate against

Dr. Kirsch then he went back and looked through all of his emails to her to find any

requests he had made her for which was not yet fully resolved and turned those

requests into charges against her. Dr. Martzloff had never asked for a status update or

indicated to Dr. Kirsch that any delays on her part were causing problems. Such

94
allegations cannot deemed to be legitimate cases for 3020a charge and should be

dismissed. (Respondent Brief P. 96).

Dr. Kirsch is charged with failing to provide a report regarding extracurricular

activities 1-6, 2-5, 3-6, 4-5. These charges allege that on or about May 1, 2014 Dr.

Kirsch was asked to provide a report on extracurricular activities and did not do so.

Although Dr. Martzloff believed that this is a simple proposition it was actually very

complicated because it involved the teachers contract. As Dr. Kirsch explained to him

we had a very large number of extracurricular activities that were in the contract. We

also had other activities that had morphed out of the contract and were not listed in the

contract per say. Accordingly Dr. Kirsch had to begin to assemble a large amount of

information. Dr. Kirsch asked her secretary to start accumulating the information that

would be required for determining the exact number of paid extracurricular activities.

She then sent out an email to the principles asking them for their help in this endeavor.

On April 28 Dr. Kirsch discussed extracurricular activities and stipends at a team

leadership meeting. On May 30, 2014 prior to the June one target date, Dr. Kirsch

emails Dr. Martzloff telling him that her interim secretary was gathering information but

that it would take at least two weeks. His response was that he did not raise any

objections however she did state that two building administrators had provided the

information that he needed. Dr. Kirsch then sent out an email on June 2, 2014 to all

principles in buildings that included extracurricular clubs asking what information they

gathered from teachers who are appointed to extracurricular activities in the clubs. Nine

responses were received. Needless to say Dr. Kirsch was placed on administrative

leave during that summer and was still working on the project at the time. This was a

95
complicated and work intensive effort to gather the information but her efforts were cut

off by her placement on leave in August 2014 and therefore she cant be blamed for the

fact that the project was not completed and accordingly the charges must be dismissed.

Respondent Brief (P-98).

Dr. Kirsch is charged with failing to provide or being late in providing a report to

the Superintendent regarding a payroll problem 1-8, 2-7, 3-8, 4-7. She is charged with

failing to respond to or advise the Superintendent on the timely basis. The Genesis of

problem was that Mary Gangloff failed to make a transfer of money into the direct

deposit account resulting in the failure of payroll for the last paycheck of the 2013-14

school year. Dr. Kirsch clearly kept Dr. Martzloff informed about the situation and

testified that on the day of the payroll issue she spoke with Ms. Grupka, Mr. Maturski

and the Superintendent to determine what had happened and what we needed to do to

get people paid and locate the source of the error. As she testified she discussed the

situation with the Superintendent on more than one occasion and the charges herein

must be dismissed as well.

Dr. Kirsch is charged with failing to provide information on an analysis regarding

health insurance options for cost savings 1-15, 2-11, 3-15, 4-12, and 5-2. alleging that

Dr. Kirsch was asked to gather information and provide a report and recommendation

concerning an employee health insurance plan option to evaluate cost savings and

failed to do so and there was no written request made of this matter. Dr. Martzloff then

stated that in June 2014 he ran into Jason Mull who works for Brown & Brown who told

him that Dr. Kirsch never discussed the plan with him. Despite these allegations Dr.

Kirsch did take steps to effectuate his request and attended one meeting with Brown

96
where the issue of high deductible plan was discussed but primarily the task was

delegated to Dr. Krupka. Perhaps Mr. Mull was not one of the people involved in the

discussions but it is clear that Dr. Kirsch got this discussion off the ground and

delegated it properly. There is no evidence as to when the initial request was made nor

was there a deadline attached to it and no basis to argue that this was this was

mishandled by Dr. Kirsch and should be dismissed.

Dr. Kirsch is charged with failing to implement the Superintendents plans

resulting in delay installing a video surveillance to investigate a criminal wrongdoing 1-3,

3-3. The surveillance in question relates to the investigation of a teacher who was

ultimately terminated for sexual misconduct with a minor student. Dr. Kirsch was the

lead contact in the District and was instrumental in spearheading the investigation with

the Amherst Police Department and local officials of the county. The record does not

make clear exactly what plans objectives or recommendations Dr. Martzloff

communicated to Dr. Kirsch but the fact is that the implementation of the surveillance

camera was prompt and completely appropriate. As Dr. Kirsch testified the camera was

installed within a week of the meeting with the police department. Dr. Martzloff never

provided a specific date by which the camera was to be installed. The record contains

no information about what Dr. Martzloff requested Dr. Kirsch to do regarding installation

of the camera and it is highly unjust and egregious than any element of Dr. Kirschs

work in this regard should end up being dragged into this proceeding and accordingly

these charges should be dismissed. (Respondent Brief P.105).

Dr. Kirsch is charged with failing to plan professional development for

administrators; failing to implement a transition plan for employees, failing to plan staff

97
development to assist with succession planning 1-20,1-28,2-4,3-18,3-26. Although it is

undisputed that Dr. Kirsch provided workshops for staff every year somehow during the

2013-14 school year Dr. Martzloff seem to want something different by way of training.

He testified that we had some changes in administrative positions and one of the things

we had noticed within our leadership team and had discussions about was the fact that

some of our Assistant Principals were interviewing to become Principals as the District

didnt seem to be adequately prepared in training in critical key areas. This charge is

ludicrous because of the eight (8) internal Assistant Principals who applied for Principal

positions in the District since Dr. Kirschs employment, seven (7) got the job and the

other one lost out to Keith Wing, one of Dr. Martzloffs former coworkers.

Notwithstanding the fact that there was no basis in reality for any need for Assistant

Principals to be trained for Principalship interviews it is clear from the record that the

Superintendent did not communicate this objective to Dr. Kirsch at all. The idea of

succession planning was not to prepare a system Principals for interviewing but to

educate them so that they were better, more well-rounded professionals who would be

able to take on more responsibilities of the District and in this regard Dr. Kirsch

performed spectacularly. It is disgraceful that Dr. Martzloff testified against the tenured

administrator based on a misreading of an evaluation that he himself signed. If this is

not a frivolous bad faith claim than nothing is and accordingly these charges must be

dismissed.

Dr. Kirsch is charged with failing to implement the Superintendents plans and

recommendations to modernize the Human Resources Department 2-15, 5-6. These

charges are vague and there is no evidence presented by the District to support them

98
and must be dismissed as being frivolous since they remain unsupported by any

evidence.

Dr. Kirsch is charged with failing to update the TEACH database regarding

teacher professional development hours jeopardizing teacher certification 1-23, 3-21

one 23. These charges demonstrate a lack of understanding of basic teacher

certification standards by the District. Dr. Kirsch handled the professional development

reporting competently and in accordance with industry standards. The controversy in

this matter focuses not on compliance with the tracking requirement but with the

reporting requirement. Because the professional development requirement was only

applicable to teachers who received their certification on or after 2004 and the cycle

was five years long the first deadline for teachers to have completed 175 hours of

professional development did not occur until 2013. This task of reporting the

professional development hours to TEACH was given to John Wolski who worked for

the District from September 2009 until October 7, 2011. His position was abolished at

the end of the 2011-12 school year and while Dr. Kirsch advocated to keep the position

in place, the position was eliminated. The job was then assigned to Janice Rovner who

struggled with the duties. Dr. Kirsch tried to prompt Ms Rovner to develop a proper

system for reporting the hours, however by the start of the 2013-14 school year it was

clear that Ms. Rovner was not getting a handle on the process.

It is critical to note that the regulations themselves do not specify how often the

professional development hours must be uploaded to TEACH. Relying on more than her

own reading of the regulations and guidance in the area, she was taking advice from

information shared by her peers and the New York State Education Department itself.

99
There is no basis on the record to support an allegation that the Human Resources

Department failed to internally track professional development hours under Dr. Kirsch.

Dr. Kirsch was told that NYSED reportedly wanted the District to hold onto their own

teachers data and Dr. Kirsch was doing just that. Dr. Kirschs reliance on input from

experts in her peers was prudent and reasonable and is no basis to support any of the

charges in this area.

There is no evidence in the record of even a single staff member having been

subject to or even questioned about any lack of reporting of the professional

development hours to the State and accordingly these charges fail.

Dr. Kirsch is charged with failing to conduct an interview and a complete job offer

for a new teacher 1-24, 3-23. On June 24, 2014 Keith Wing the Principal at Forest

Elementary School informed Dr. Kirsch that he was recommending a teacher for a new

teaching position and asked that the process be completed that week. Mr. Wing was

advised by Dr. Kirsch it would not be possible to do so. We will do our best to put her at

the top of the pile when we begin to schedule those in July. It was Mr. Wings

responsibility to send a packet to Dr. Kirsch with the teachers information and

applications. Mr. Wing then followed up about the status of the interview and Dr. Kirsch

responded that they telling him that her interim secretary was searching for the

paperwork and that she would get back to him if he could not be located. It is

undisputed that the teacher was ultimately hired in time for the start of the school year

so the main complaint seems to have been that Mr. Wing and some of the parents

would have liked to have her available before the school year started. This in turn led to

a dispute in the interpretation of the Districts hiring guidelines. The guidelines state that

100
applicants must be appropriately certified for the position prior to the interview. Dr.

Kirsch stated that having a teacher who is certified on the day of her interview but who

would not be certified on the date she was to start teaching did not comply with this

policy. Therefore these charges must be dismissed.

Dr. Kirsch is charged with failing to keep the Superintendent abreast of labor

concerns including teachers transfer concerns. The essence of these charges goes to a

grievance involving a teacher named Ms. Floccare and a Facebook posting she made

critical of the Superintendent. After the posting was discovered by the Superintendent

he decided to transfer the teacher and instructed Dr. Kirsch to meet with her to deliver

the news. The record contains many discussions of this transfer as one of the concerns

of the staff that Dr. Kirsch had about Dr. Martzloff. Yet although the District spent a lot of

time trying to justify Dr. Martzloffs actions there was no testimony about any failure on

Dr. Kirsch to keep them apprised of the situation. Charges 1-12, 3-12 must be

dismissed.

Dr. Kirsch is charged with failing to manage payroll resulting in a $250,000 over

payment in payroll taxes. There was clearly an obvious error on the part of Mary

Gangloff who remitted the incorrect amount of money to the government and there was

not a single dollar in cost to the District as a result of the payment discrepancy. Mary

Gangloff admitted that the overpayment was made as a result of her remitting the wrong

amount. These charges related to a single human error by Gangloff and cannot possibly

support a claim against Dr. Kirsch 1-24, 3-22.

Dr. Kirsch is charged with committing numerous mistakes in Board of Education

packet submissions. However Dr. Lipman who testified at hearing could not point to any

101
inaccuracies or mistakes and submissions to the Board made on or after December

2011 except items which did not seem accurate in his mind and must be dismissed.

102
Discussion

The standard of proof required in disciplinary proceedings as in the instant matter

is a preponderance of the evidence. A preponderance of the evidence requires that the

party with the burden of proof must prove that there is a greater that 50% chance based

on all of the reasonable evidence that a wrong has been committed in proving the

case. This is a standard lower than the standard used in a criminal court of law which

requires a standard of Beyond a reasonable doubt. The term preponderance of the

evidence is generally understood to mean, If the evidence is equally balanced or if

it leaves a trier of fact such doubt as to be unable to decide the controversy either way,

judgment must be against a party where the burden of proof rests (Elkouri & Elkouri,

How Arbitration Works (Fifth Ed., BNA Books).

It is imperative on the party with the burden of proof (in this case the District) to

tilt the scales of that large burden of a finding of credibility upon them. In disciplinary

matters under the just cause standard, the grievant is not required to prove anything, as

the burden of proof is solely on the charging party to prove his/their case. In a He said

She said set of circumstances, due weight must be given based upon the credibility

of the witnesses in the record. In the instant regard, the District has met its burden of

proof required by the standard and has produced credible witnesses and testimony in

proving this case.

Dr. Kirsch is clearly a very articulate, well-educated professional with many years

of prior service provided in many different capacities in New York State School Districts

103
and previously in BOCES. She has achieved recognition by many professional

advocacy associations during her career.

Dr. Kirsch began her professional career in this District in the 2007 school year

and initially served under Dr. Howard Smith until his retirement from the District. The job

of Assistant Superintendent for Human Resources is not an easy one and requires

dealing with many human resource activities.

This position in large part requires being an advocate representing the

management of a School District in dealing with contract grievances, negotiating labor

contracts and representing the management side of the table. The management side of

the table includes the Superintendent and the Board of Education. Each of the four (4)

Assistant Superintendents in the leadership team of the District oversee their own

areas of responsibilities and have an obligation by their respective job descriptions to

report to the Superintendent of Schools who carries out District missions as directed by

the Board of Education.

The current Superintendent, Dr. Martzloff started his employment in this District

in the 2011 school year and it is clear that as the new Superintendent he operated

differently than the previous Superintendent in the way that he ran and directed the

operation of the School District basically, as the New Sheriff in Town. The record is

clear that he encountered a great deal of resistance to his ways by all levels of staff, but

mostly from Dr. Kirsch in particular. At hearing and in this record, Dr. Kirsch made it

very clear that she offered a great deal of advice, institutional wisdom and knowledge to

Dr. Martzloff about how things were done in Williamsville. The record is also very clear

that Dr. Kirsch was clearly offended and gave push back and resistance when Dr.

104
Martzloff did not embrace her advice by her testimony and her demeanor at the

hearing.

The Superintendents manner of operation and managing the School District led

to a number of these same concerns by Dr. Kirsch, her three colleagues on the

Leadership Team (who are also Assistant Superintendents), the leadership of the

Teachers Union, the WTA and the Administrators Union WAA. Dr. Martzloff has

been criticized for showing favoritism to his children, for his hiring practices and many

other of his actions which were clearly different than had been done previously in the

District however, his actions were within his authority to do. As the professional insights

and recommendations offered by the above groups of people were not embraced, and

Dr. Martzloff did business the way he chose to do business, (as the Superintendent and

within his authority as the Chief Operating Officer of the District), discussions arose

regarding the way he was performing his duties. Regrettably this created problems

which resulted in consequences for Dr. Kirsch and the episodes which followed bringing

the instant case.

The listing of these concerns was compiled by and maintained by Dr. Kirsch and

others. The concerns led to a number of meetings at which these constituent groups

discussed their thoughts and trepidations about the path down which they believed Dr.

Martzloff was leading the District. The institutional staff were experiencing change to

the status quo that shook things up and challenged the understanding which they had

regarding the proper running of the School District. This was clear, even displaying itself

as a type of dread and/or fear that was expressed at hearing over Dr. Martzloffs

accessing the mail meter (email) system. While the Superintendent has authority to

105
review all the District emails people including Kirsch became nervous and in that light,

this caused Respondent to be very upset and worried and believed that he had

exceeded his authority -- because this was not done previously by any other

Superintendent. Dr. Martzloff was acting within his authority to which the Board of

Education did not take issue and in fact, the Mail Meter application form itself required

the Superintendents signature for access to be approved.

Upon testimony and evidence submitted into the record, Dr. Kirsch was upset at

this change and became a gatekeeper of sorts of this movement against the

Superintendent with others. A list of these concerns was compiled, and she was the

glue in the fabric in keeping this movement going forward. These concerns went to the

heart of the governance of the District as a whole, and consummated in five (5)

meetings and many emails which Dr. Kirsch spearheaded, and which also led to these

charges against her.

While Dr. Kirsch has argued that she was only one of four Assistant

Superintendents with these concerns, and has stated that the Teachers Union was the

driving force behind this movement, at hearing, testimony and the record shows that

she was very instrumental in bringing this to the forefront. Dr. Kirsch clearly recognized

and understood in her discussions with the President of the Teachers Union that her

actions could be viewed as insubordination. An email chain in this record shows the

following in an email from Dr. Kirsch to WTA Union President Michele Licht:

From Dr. Kirsch to Michelle Licht on June 15, 2004 at 2:38 pm:

Evidently it is possible that our discussions could be viewed as


insubordination - so we should probably not share them with others as
much as possible... The initial meeting with the BOE should not only be about
AF, but should be as all-encompassing as possible to prevent a promised single

106
improvement, but one that would not ultimately be delivered. If my colleagues
do not join us we might need to figure out a plan B I hope this is not the
caseFinally, should we each consider bringing another person or two with us?
(Emphasis added.)

On June 15, 2014 at 3:51 PM Michelle Licht wrote back in relevant part stating:

I agree about not making this about a single issue. I do not want the BOE to
have any other option other than to buy out his contract. I was thinking that the
overall topic for the meeting with the BOE could be his abuse of power and
continual decisions that are made on personal whim If your colleagues dont
want to join us, I think you, Charlie and I would still have a significant impact, but
I will go it alone if it comes down to it.. At this point can things really get much
worse??? (Emphases Added)

Dr. Kirsch responded on June 14, 2014 at 4:12 PM stating:

It cannot. I hope my colleagues can find the courage to join us, especially
because you and Charlie are already there. Lets see how they respond to your
call. Shall I tell them its coming? We have our leadership meeting at noon.

The concerns compiled by Dr. Kirsch are listed in pages 10 through 31 of

Respondents Brief and call into question the ethics and professionalism of Dr. Martzloff

and the perception of his leadership ability. There were concerns that he was violating

District policy because he was doing things differently than in the past.

However, there is no evidence or proof submitted into the record that the

Superintendent broke any laws, and it is clear that many of the concerns complained

of fell well within his authority to do as the Chief School Administrator, and was outside

of the authority of the three interest groups who were meeting over these complaints.

For example, it is clear that the Superintendent is the final decision-maker as to

who would be recommended to be hired in the School District as this right is clearly

listed in his job description. The Board of Education also has the right to say Yes or

No in the system of checks and balances in the running of the schools. It is also in the

107
Superintendents job description that the Assistant Superintendents report to him and,

not the other way around.

The Superintendent was criticized by Dr. Kirsch for showing favoritism and lack

of transparency in the hiring process when he hired Keith Wing in the 2011-12 school

year for a Principalship. Dr. Martzloff hand-picked Keith Wing for the job in large part

because he was aware of his competency when they previously worked at the Byron

Bergan School District together. Experienced School Board Members and

Administrators are keenly aware that it is very common for Superintendents to build a

cabinet and advisory staff of Principals from previous experiences in different Districts.

Over the years, levels of trust are built and are frequently carried from one District to

another by Administrative leaders. Dr. Kirsch did not like the appearance of Dr.

Martzloffs actions and commented on his decision, and stating in her closing brief as

follows:

I provided some insight to him at that time about how the hiring process had
worked in Williamsville. The long standing hiring process at the District involved
parents, teachers and sometimes students and hiring committees and she told
him that she thought The fact that he would bring someone from his most
immediate place of employment might be concerning to the people on the
committee. This is not a question of the Superintendents authority but rather it is
a question of the perception of favoritism for a friend from his former District as
well as an issue of poor leadership. If the Superintendent wants to change the
hiring procedures he could have done so explicitly however he chose instead to
work behind the scenes causing concern and distrust amongst the staff and Wing
was hired however. (Respondent Brief, P.5)

At hearing, testimony of witnesses and evidence submitted into the record shows

that many of the concerns of Dr. Kirsch were her view that the Superintendent wanted

to do things differently from the previous Superintendent and she took issue with his

actions by pushing back and/or feeling compelled to challenge his authority. While he

108
clearly did things his own way (with full the knowledge of the School Board), Dr.

Martzloff is the Superintendent and he has rights and discretion in areas where

subordinates do not. The Superintendent is the Chief School Officer and the concerns

raised by Respondent were out of the bounds of her authority. Even though Respondent

was upset by the change in the way things were being done, the Superintendents

decision-making process and his mode of operation was within his authority to do.

It is seemingly misunderstood by Dr. Kirsch that the Superintendent was hired by

the Board of Education and any changes or ways in which he has done things

differently have not been challenged by the Board. While it is clear that some of the

complaints were brought to Dr. Kirsch by others, she could have brushed them off and

referred them elsewhere and concentrated on her job which was to run the Human

Resources office as he directed her.

As the evidence at hearing displayed, Respondent allowed herself to take a

position against the Superintendent, wherein she felt compelled to do something about

the way things were being run. In an effort to solve these many problems that she felt

the Superintendent was causing, Respondent established, controlled and maintained a

record to be used to seek Dr. Martzloffs demise which clearly had an end result and

intent to be brought to the Board of Education for his elimination from the School District

in her email exchange with WTA (Union) President Licht, to be bought out. (Dx-

108, Emphasis added.) There was even a vote taken at one of the five (5) meetings of

the Superintendents subordinates (and others) where it was decided the

Superintendent was not correctable, or words to that effect. However, when these

109
concerns were brought to the Board of Education by Respondent, they were

dismissed in their entirety.

The record shows that at some point before the meeting with Board President,

Dr. Losito where Respondent presented these concerns to Dr. Losito on June 30,

2014, the Superintendent was advised that he was being undermined by someone in

his leadership ranks. At that time, the Superintendent had no idea that this was going on

his Leadership Team (and others) compiling a list of complaints against him.

It was at this point that an investigation then ensued and it was discovered that

Respondent was the individual orchestrating the movement. After Respondent was

placed on leave, much was discovered that led to these charges by the Board of

Education. There is no proof whatsoever that bringing this 3020a action against Dr.

Kirsch was an act of retaliation by either the Superintendent or the School Board, but

rather arose from the investigation that ensued which exposed much of what became

the charges and specifications against Respondent.

It is noteworthy to understand that each of the three (3) interest groups in the

establishment of this District (the Assistant Superintendents of which Dr. Kirsch was the

anchor, the WTA and the WAA) clearly have the right to bring their concerns to the

Board of Education based upon School District Policy and rights under the laws that

control. Nothing in this instant determination should be interpreted as meaning that

these groups of people who are stakeholders in the School District structure should

not question wrongdoing. The other three (3) Assistant Superintendents, the WTA and

the WAA Unions are not on trial here.

110
It is solely Respondents actions that are at issue by the Board and

Superintendent in this proceeding. The record at hearing has demonstrated that

Respondent was in close contact with the Presidents of both Unions and the front-

leader in bringing these concerns forward. Her involvement continued even after her

three (3) Assistant Superintendent colleagues declined to go any further or offer any

additional support to her. After her colleagues dropped out, Respondent continued her

quest. The record before the undersigned proves without any doubt whatsoever that

the District has proven the charges of Respondent Undermining the Superintendent of

Schools in her efforts to have him removed from his position by the Board of Education.

The record shows that the Board of Education clearly supported the

Superintendent. After the WTA criticized the Superintendent to its members the Board

of Education responded to the WTA (D-109) in letter which demonstrates their support

of the Superintendent which in relevant part states as follows:

The Williamsville CSD Board of Education was disappointed to learn of your


correspondence to your members in a letter dated August 18, 2014. We believe
this letter inappropriately impugns and deliberately misstates, the work of our
Superintendent. Out of all due respect and candor we find it to be an
inflammatory and unnecessary call to action that is grounded in your personal
dislike of the Superintendents leadership style, which is unfortunate.

You raise three points in your letter that we would like to address: (The first)

1. We believe the Superintendent has shown favoritism for his own


children and the children of his personal friends.

This is a completely spurious claim. Moreover, we find it reprehensible that


you would involve Dr. Martzloffs family in your concerns for his leadership
style. He is a District parent and in our estimation, has conducted himself
appropriately at all times.

(The second)

111
2. We believe the Superintendent has repeatedly interfered in the hiring
process and caused his friends to be hired rather than the most
qualified candidates.

Dr. Martzloff is the Chief Executive Officer of the School District and there
is no such thing as interference in the hiring process. It is his
recommendation that is made to the Board with respect to hiring, not that
of teachers, committees or other administrators. Further, your assertion
that he has shown favoritism for certain candidates known to him is
without foundation Further, it is the Board of Education that ultimately
makes the hiring decision and questions the Superintendent on the nature
of his recommendations.

(The third)

3. And finally, we believe that the Superintendent has shown a clear


pattern of retaliation and intimidation against those who oppose him.

He has recently suspended Dr. Kim Kirsch after she was the first District
Administrator to bring concerns to the Board of Education. The Board of
Education believes this allegation is a serious one, yet you have provided
us with no credible evidence of the behaviors you describe through the
multiple conversations our representatives have had with you. And again,
please remember that it is the Board of Education through resolution that
makes all personnel decisions as we did (unanimously) with the Kirsch
matter In sum, the Board unanimously supports Dr. Martzloffs
continued leadership of our District and we hope you will consider
productive steps for addressing your concerns, rather than the obvious
mudslinging in character assassination that you have resorted to in the
most recent letter to your members.

By correspondence dated September 16, 2004 the Board of Education

communicated in a letter to the public regarding discontent of the teachers and

administrator union leaders for the work of the Superintendent stating in relevant part:

After careful consideration resulting from its own due diligence, the Board has
concluded that the serious allegations made against Dr. Martzloff concerning
abuse of power and retaliation simply do not exist. We also believe that
additional implications concerning favoritism sought by Dr. Martzloff for his
children are equally baseless. Finally, the notion that Dr. Martzloff has exercised
favoritism in the hiring process is without foundation. The Board of Education
fully vets the recommendations of the Superintendent of Schools and Dr.

112
Martzloff has in our opinion always exercise full disclosure and an ethical
character with regard to these recommendations. As a result we will not perform
any additional investigation into this matter as we feel it is completely
unwarranted.

Subsequent to Dr. Kirsch being suspended with pay, by correspondence dated

August 13, 2014, Michelle Licht and Dr. Kirsch continued to correspond with Dr. Kirsch

working hand-in-hand with the WTA composing a letter to the Board of Education. An

email dated August 22, 2014 at 4:47 PM to Dr. Kirsch, Ms. Licht wrote :

Hi again! Here is a draft of what we would like to send to Patti Losito,


cced to the board members and to all of our WTA members in response to her
letter. If you have any suggestions that would be great. More importantly
though if there is anything pertaining to you or to WAA that you are not
comfortable having in this letter please let me know and I will take it out Any
feedback is welcome! We plan to start copying the letter at 9 AM tomorrow so the
sooner the better thanks, Michelle.

On August 22, 2014 at 11:19 PM Dr. Kirsch replied in an email as follows:

Hello Michelle: I am fine with the examples you listed, and of course defer
to the WAA regarding their feelings about any related to them. I made some
small edits in red with the exception about the hiring piece, ignore any that you
dont agree can be made from your perspective! Know that your letter is
powerful One of my other smart friends is in awe of it! Some general
assessments that you can insert if you feel the need; The letter smacks of the
same intimidating tactics that the superintendent uses in his daily interactions... It
is also a very arrogant response to the president of the largest unit, in
saying that they will not allow you into executive session or that you
should not expect to be allowed into executive session. You made it clear for
the second time that the requests coming from both executive committee is
unprecedented, and it is. It would be hard to believe that ANY other District
faced with the same request would write one of this magnitude. While they
do have the discretion to make the decisions about it, they are in fact brushing
you off. One last item The board might also want to consider the additional
intimidating actions of the superintendent who chose to hold meetings with staff
members and administrators at District office in the presence of his/their new
attorney for several days Sorry I missed your updated version. Call me
tomorrow if you need any! Kim ( Emphasis added).

113
It is clear that Respondent was a motivational force in moving this forward even

after her three (3) Assistant Superintendent colleagues opted out of going any further

and she is guilty of Undermining the Superintendent. She could have defused this

matter, but decided to take it on.

Respondents charge of retaliation by the Superintendent is not supported by the

evidence in the record, as the charges were voted on by the Board of Education and he

is supported by them fully. The Board of Education is the power and authority who can

justify these accusations against the Superintendent, if in fact they are substantial. The

Board of Education did not believe that Respondents list of criticisms against the

Superintendent actions were in any way unethical, corrupt or had broken the law.

In this proceeding the undersigned is not appointed to judge the Superintendent

of Schools or the Board of Education. The hearing officer is given a task to weigh the

charges and specifications which are leveled against the Respondent. In her closing

brief Respondent believes that she had to do what she did because she believed that as

an advocate for what she believed in, caused her to rally against the Superintendent.

Respondent took a stand because she wanted to change what the Superintendent was

doing. This however, does not change that fact that the behavior that she engaged in

was insubordination.

In Respondents correspondence with the Union she knowingly placed herself at

risk for these charges. There is no denying by the evidence presented at hearing that

the whole problem in Respondents case was her dissatisfaction with the way the

Superintendent was running things.

114
Ultimately, Dr. Martzloff is the Superintendent and he is accountable to the

School Board of Education, who has supported his actions and supports these charges

against Respondent. Other stakeholders certainly have the right to complain about his

actions, but aside from his obligations to follow the law (which is not at issue here) he is

the boss and the Chief Administrative Officer, to whom Respondent is a subordinate

and must comply with the dictates of her position as the Superintendents Assistantant

as in the job description, as in Joint Exhibit #2 (JX2):

Assistant Superintendent For Human Resources


Reports to: Superintendent of Schools
Typical Work Activities:

16. Performs such other tasks and assumes such other


responsibilities as directed by the Superintendent of Schools or
his/her designee.

There is no conspiracy or retaliation on the part of the Board in this record as

alleged by Respondent and the charges are not frivolous. The undersigned believes

that Respondent has done what she has done because she has believed that what she

has done was the correct thing. Yet, what Respondent has done, she has pitted herself

against the Superintendent in an effort to get him bought out from his position and

thereby brought these charges upon herself in her activism against him.

The testimony and evidence presented against Respondent proves that the

District was correct in finding her to be insubordinate in what she has done -- and

correct in believing that she Undermined the Superintendent of Schools.

Respondents own emails are proof of this.

115
District Policies

The following District Policies are important in understanding the authorities and

controls that are of importance in this matter, and should be read to understand the

authority of both the Board of Education and the Superintendent:

District Policy 6110 - Personnel

Standards of conduct: Every Board member or employee of the Williamsville Central


School District shall be subject to and abide by the following standards of conduct:

Confidential Information: He/she shall not disclose confidential information acquired by


him/her in the course of his/her official duties or use such information to further his/her
personal interest. (Emphases Added)

Penalties: In addition to any penalty contained in any other provision of law any person
who shall knowingly and intentionally violate any provisions of this code may be fined,
suspended or removed from office or employment or the case may be in the matter
provided by law. (Emphases Added)

District Policy 4000 Administration Central Office and Building Administration


Superintendent of Schools Policy 4310. (D-3)

The Superintendent of Schools is the Chief Executive Officer of the District and he
reports to the Board of Education. In that capacity he/she shall . In relevant part:

b. Administer all policies and enforce all rules and regulations of the Board.

c. Constantly review the local school situation and recommend to the Board areas in
which new policies seem to be needed.

d. Be responsible for organizing administering evaluating and supervising the programs


and personnel of all School Departments, instructional and non-instructional.
. . .
j. Be responsible for recommending for hire, evaluating, promoting and dismissing all
professional and nonprofessional staff personnel. Plan and coordinate the recruitment
of teachers and other staff to assure the District of the best available personnel.
. . .
m. Plan and conduct a program of supervision of teaching staff that will have as its goal
the improvement of instruction and at the same time will assure that all of the teachers
found to a high degree of competence will be recommended for tenure and strive to

116
distinguish for all concerned between the areas of policy decisions appropriate to the
Board and management decisions appropriate to the Districts administrative personnel.

o. When necessary and desirable transfer such personnel as he/she anticipates will
function more effectively and other positions. These transfers shall be made within the
guidelines of state laws, District policies and negotiated contracts.

p. Submit the data from the School report card and/or other such reports of
student/District performance as prescribed by and in accordance with requirements of
the Commissioner of Education.

School District Policy 1000 1340 (D-7) The Role of the Board of Education
Board Staff Communications.

The success of any School system requires effective communication between the Board
of Education and School staff. The Board encourages a two-way flow of communication
with the employees regarding the operation of the School In accordance with good
personnel practice, staff participation in the development of educational and personnel
policies will be encouraged and facilitated. The Superintendent of Schools shall develop
methods to keep staff fully informed of the Boards problems, concerns and actions and
for staff to communicate information related to the District operations. All
communications and reports to the Board for staff members and staff organizations will
be submitted to the Board through the Superintendent. All official communications,
policies, and directives of staff interest and concern will be communicated to staff
members through the Superintendent. However, this will not be construed as denying
the right of any staff member to appeal any action or decision of the Superintendent to
the Board (Emphasis Added).

Discussion On Other Charges And Specifications:

Respondent is also charged with a number of specifications regarding her

treatment of the Human Resources office and showing favoritism to some employees,

over others. In turn, Respondent points the finger at two employees in her office who

she says are the real problem in this department. It is true that Dr. Kirsch did in fact

implement some disciplinary action for one of the employees, however the testimony by

each of them which was critical of her actions, is not refuted in substance on the record.

117
Both her personal secretary for many years and the payroll supervisor retired from the

district earlier than they wanted to, suffering a reduction of retirement benefits to get out

of the Human Resources Department seemingly to escape her wrath. Another

employee, also testified that she had similar thoughts of leaving, but elected to stay.

At hearing, what was very telling and significant is that after Respondent was

placed on leave and brought up on charges, both employees Ms. Gangloff and Ms.

Rovner have been rehired into the same department. Since their return there are no

negative incidents to report with their work in this record and the Department is running

efficiently under the supervision of the Interim Assistant Superintendent who was hired

to replace the Respondent.

Regarding Respondent not performing her duties, the question of credibility

comes into play as the testimony by the Superintendent is credible and undisturbed.

What is also striking is the selective treatment of the two (2) employees by Respondent

that the Superintendent hired and worked with in a different school district. Their

requests were not honored as they should have been, while others that were similar and

came into her office, from others who Respondent favored, were dealt with almost

immediately. The Superintendents perception of their treatment in his testimony is

credible in this record.

While Respondent has contended that her subordinates in the Department of

Human Resources made the mistakes in these charges, Respondent, being the

Department Head must as well bear responsibility. The undersigned notes and agrees

with Arbitrator Caffera regarding this defense especially in the certification of payroll

issue which is required by law:

118
In the end, while authority can be delegated, responsibility cannot. So, there are
a number of responsibilities that fall within any Department, then the Department
is responsible for, and the responsibility for all of those duties being carried out,
whether or not theyre granted the authority to others to perform those duties.
(TR P. 2615)

119
Determination of Charges

The undersigned has determined the following:

Charge 1 Incompetence: The following specifications have been proven: 1, 3, 4, 6, 7, 8,


9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27.

Charge 2 Misconduct: The following specifications have been proven: 1, 2, 3, 5, 6, 7, 8,


10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23.

Charge 3 Neglect of Duty: The following specifications have been proven: 1, 2, 3, 4, 5,


7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 25.

Charge 4 Insubordination: The following specifications had been proven: 1, 2, 3, 6, 8, 9,


10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20.

Charge 5 Conduct Unbecoming an Assistant Superintendent: The following


specifications have been proven: 1, 2, 3, 4, 5, 6,7, 8, 9, 10, 11, 12, 13.

The following specifications have been dismissed:

Charge 1 Incompetence: The following specifications have been dismissed: 2, 5, 26,


28, 29.

Charge 2 Misconduct: The following specifications have been dismissed: 4, 9.

Charge 3 Neglect of duty: The following specifications had been dismissed: 6.

Charge 4 Insubordination: The following specifications have been dismissed: 4, 7.

Charge 5 Conduct Unbecoming an Assistant Superintendent: None have been


dismissed.

120
Discussion On Penalty

Respondent has put forth many reasons in defense of her actions in closing brief,

including that: her job was to be loyal to the District; not to have a blind loyalty to the

Superintendent; that there is a lack of any directive to support the Districts allegations

of insubordination; and, that while her employment contract required the District to

inform her that there were any issues related to her performance, she was never

provided with any documentation substantiating any misconduct, any written directives

or written warnings, any notice or follow-up to indicate that her performance was

anything less than highly competent; that there was retaliation against her for being a

whistleblower; that all evaluations before June 30, 2014 were excellent; that this is a

tenure case-but rather two people are not getting along is not misconduct; that she was

advised by counsel; that the District has not met the standard of proof; and the District

has no just cause to discipline her.

What is noticeably absent from Respondents responses to the charges and

specifications against her however, is any recognition that any of her actions were

improper, or that she would change her ways if she was placed back in her position as

Assistant Superintendent of Human Resources for the District.

Given the entirety of this record however, it is virtually impossible to comprehend

how Respondent could operate as a close confidant to the Superintendent after the

many acts of undermining him which this hearing has brought to light. The same holds

true with Respondents blatant criticism of (Board President) Dr. Lositos testimony and

the Board of Education who supported the Superintendents changes in the status quo

121
operations within the District, of which Respondent felt were acts and procedures which

were beyond his authority. The Board disagreed with Respondent.

When Respondent brought her complaints regarding the Superintendent to the

Board, the Board of Education dismissed them all and did not believe that there was

any breach of authority committed by the Superintendent.

Respondent however disagreed with the Boards judgment and went ahead with her

activism against the Superintendent. The contents of Respondents email exchanges

with Union President Licht, regarding her criticism of the Board of Education is frankly

revealing of Respondents anger against the Superintendent and the Board of

Education. Respondent actively took a hostile position against the Superintendent and

the Board while at the same time being employed as an Assistant Superintendent who

is charged in a subordinate position of supporting and assisting the Superintendent of

Schools. (See, JX2 regarding the duties of an Assistant Superintendent.)

The Board of Education has recommended Respondents termination and

submits that this is the appropriate penalty under the circumstances. There are 38

separate specifications that were lodged against Respondent which pertain to one or

more of the five charges listed herein, the majority of which had been proven by a

preponderance of the evidence during the hearing. Respondents collective actions

warrant her removal.

Attorneys for Respondent and for the District have submitted copious closing

arguments and numerous decisions regarding penalty rendered by hearing officers in

different matters. However the penalty sought by the District -- namely termination -- is

122
supported by previous hearing officer decisions submitted in closing brief by District

counsel.

A similar case to this instant matter involves the termination of the Deputy

Superintendent of Business and Personnel, Dr. Burkybile in Hastings on Hudson Union

Free School District vs. Dr. Sharon Burkybile, SED 4417 (2003) (Campana, H. O.). In

that matter respondent was found guilty of refusing to follow the directions of the Board

of Education and the Superintendent and refusing to provide assistance and a cavalier

attitude in times of crisis, failing to bid out certain projects. This was despite the fact that

the General Municipal Law required the project to be bid, and failing to provide the

superintendent with accurate information relating to the budget process. Id. at 152.

Hearing officer Campagna opined:

of equal or greater concern to those noted above is the respondents inability


to work effectively with the superintendent and the Board of Education as well as
her other colleagues. In this regard, the unreasonable vengeful and vindictive
attitude respondent displayed toward the superintendent (as well as Miss Frankl)
makes her unfit to continue in her role as deputy superintendent the role of
second in command in the Hastings on Hudson Union Free School District. In
this role the superintendent and the Board of Education have a reasonable
expectation as well as a right to expect consistency, dependable and loyal
service in the position of deputy superintendent of business and personnel. By
her continued actions, the respondent has demonstrated that she is unfit to
continue in this capacity. Id at 152-53, (Emphasis added.) (District Brief P-127).

Despite Respondents apparent failure to realize the seriousness of her conduct

and the seriousness of her actions, which have presented themselves as outside of

normal or acceptable behavior for an Assistant Superintendent, that nothing she could

do at this point would restore the trust she has shattered with both the Superintendent

and Board.

123
In Elmsford Union Free School District vs. Michael Senno, SED 10,231 (2009)

(Douglas, H.O.) respondent was found guilty of disclosing confidential information that

he had obtained in his role in collective bargaining agreement negotiations to a building

principal with whom he had a personal relationship. Hearing Officer Douglas in

upholding the districts termination of respondent stated:

In numerous awards where termination is not ordered but a significant


penalty is imposed, a remediation recommendation is so ordered. These
recommendations are primarily designed to assist in improving ones behavior or
performance. Yet in the instant matter there is little to be gained from any
remediation order. To instruct Senno not to share confidential collective-
bargaining information with a member of an employee bargaining unit is so
fundamental so as to be beyond citation. Id. At 27. (Emphasis added.)

Respondent testified during the hearing that she could continue to work with

Superintendent Martzloff, yet that idea is not realistic. While at hearing Respondent

testified that she could continue to work with the Superintendent if given the chance,

there is nothing in the record to support this contention. Even at hearing Respondent

exhibited much anger and upset, continuing to purport that she is the victim of retaliation

(when the reality is that Respondent is the subject of discipline for her actions.) Much

of Respondents anger also continues to be expressed in her closing brief. It is hard to

understand how Respondent could work with the School Superintendent and the Board

of Education after Respondent maligned them and alleged that they had been untruthful

and acted improperly. This is clearly evidenced by the abundance of emails in this

record which she authored and exchanged with the WTA President.

Respondent shared confidential information with a Union President and others, and

organized a meeting whose purpose was establishing grounds for removal of the

Superintendent Dr. Martzloff. That she absolutely cannot take steps to reestablish the

124
trust of the District is as Hearing Officer Douglas commented (above) is so

fundamental as to be beyond citation. Her actions herein were alarming,

unconscionable and unforgivable. (District Brief P.132)

The District notes that it does not lightly ask for the termination of an employee.

Inasmuch as Respondent refuses to accept responsibility or otherwise show remorse

for the misconduct proven during this hearing, the only option here is termination as

there no place for any type of remediation which could assist Respondent as she does

not believe that she has done anything wrong.

It is noteworthy how closely the above cases mirror the instant matter as in the

employees defense in that case Respondent has steadfastly denied any wrongdoing,

denied the seriousness of the charges or failed to comprehend the gravity of her

conduct as an Assistant Superintendent.

The District has raised numerous significant concerns and displayed proofs at

hearing through Respondents own telling emails (DX 108, DX 117, DX 118) and the

testimony of witnesses which substantiated the charges regarding all of the

Respondents misconduct and incompetence. The undersigned has determined in the

previous section of this award that those charges had been proven by an overwhelming

preponderance of the evidence and therefore the evidence clearly conforms to the

charges and specifications preferred against Respondent.

In Administrative proceedings as such there is no need to import strict requirements

of the criminal law and criminal trials into proceedings. Accordingly in the administrative

forum the charges need only be reasonably specific in light of all of the relevant

circumstances to apprise the party whose rights are being determined of the charges

125
against him/her. The District has met that requirement and the same applies to the

level of detail in the charges regarding the time periods of Dr. Kirschs conduct.

Clearly both parties have had excellent counsel by their attorneys in this matter. Dr.

Kirsch has had excellent representation by her attorney and she has been given more

than reasonable time to prepare an adequate defense. Even after some two (2) years of

this prolonged hearing, Respondent was given much additional time after the District

rested its case-in-chief to prepare her defense.

Once again, while Respondent appears to be convinced that the Superintendent

and Board have retaliated against her, in reality, the truth, based on the evidence

presented, is that what Respondent believes to be retaliation is indeed disciplinary

action for her misconduct which is chargeable under 3020a of the Education Law.

In her closing brief, (Respondent Brief P.49), Respondent has labeled herself as a

whistleblower who has suffered injustice, and while Respondent did not offer the

definition of a whistleblower it can be reasonably understood to mean calling out

someone who has broken a law, acted unethically, or being corrupt. Respondent

believes that this is a justification for her actions, even though the authoritative Board of

Education did not agree with Respondents concerns and believed that Superintendent

Martzloff did nothing which was beyond his power to do or authority, or was

inappropriate or illegal. The bottom line is that the Superintendent is monitored by the

Board of Education and only the Board in its authority has standing over whether the

Superintendent is doing things correctly or not.

It is important to understand that the undersigned is not here to judge the

Superintendent of Schools, the Board of Education, the Unions or any other outside

126
party in this matter. This hearing is not about whether any other outside party acted

incorrectly in what has occurred in this unfortunate scenario. This determination is set

out to answer all of the charges and specifications leveled against the Respondent and

because of her actions against the Superintendent and the Board while she has been

employed as a management and confidential Assistant Superintendent whose primary

role is understood to support her superior(s), and to be without disregard for his

authority.

Given all the circumstances of this matter Respondent has received more than

sufficient notice of the charges against her and has clearly been given a fair hearing of

the charges against her. A review of the record compiled by hearing officer Caffera,

(consisting of some 29 days of hearing transcript) clearly established that he operated

the hearing in a similar manner in providing a fair and impartial hearing with regard to

the evidence allowed in this case. While a few charges had been dismissed by the

undersigned none of the charges are dismissed on semantics, nor were they frivolous.

Finally under Education Law Section 3020a (4) (c) the hearing officer shall

indicate in the decision whether any of the charges brought by the employing Board

were frivolous as defined in Section 8303-a of the Civil Practice Law and Rules. The

standard imposed for finding frivolous charges under this section is very high and

Respondent has not met her burden of proof in this regard.

Charges and specifications in this case were not undertaken in bad faith or to

harass or maliciously injure Dr. Kirsch. The District has raised and proven numerous

significant concerns about the conduct and incompetence of Respondent.

127
This matter required 49 hearing days, produced more than 6,200 pages of

transcript more than 225 exhibits and over 300 pages of closing briefs. Accordingly,

none of the charges brought by the Board of Education were frivolous as defined in

Section 8303a of the Civil Practice Law and Rules.

The undersigned takes no pleasure whatsoever in rendering this penalty against

Respondent, however after a preponderance of the evidence and testimony entered into

this voluminous record, the undersigned does not believe that the penalty ordered

herein is shocking to the conscience, (as set forth in the Pell Standard: Pell v. Board of

Education, 34 NY2d 222). It is determined that the appropriate penalty is termination

from the District. In addition, all motions for dismissal of charges and a determination

that the charges are frivolous, by Respondent are denied and hereby dismissed.

128
Decision

Based on a preponderance of the substantial and convincing proof and evidence

in the record, the undersigned has determined that the District has proven its case. The

penalty to be imposed and hereby ordered is Respondents termination from

employment as Assistant Superintendent of Human Resources in the Williamsville

Central School District. The District has met its burden by the submission of

overwhelming proof that each of the Charges preferred as (stated hereinabove) have

been proven.

In compliance with Section 3020a of the Education Law, the undersigned finds

that none of the charges brought by the employing Board were frivolous as defined in

Section 8303a of the CPLR. The Motion(s) by Respondent to dismiss the charges and

find the charges frivolous are all hereby denied and dismissed in all respects.

State of New York )


County of Albany ) ss.:

I, John T. Trela, do hereby affirm my oath as an Arbitrator/ 3020a Hearing Officer; that I

am the individual described herein and who executed this instrument, which is my

Award.

June 12, 2017

129
130