2017 Decision On Williamsville School District Firing of Kim Kirsch

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.
was asked to conduct an analysis of staffing scenarios to provide focus
for District budgeting and the budget process which she never
provided.
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.

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

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.

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.
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.
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.
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
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
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.
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
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
Superintendent on a payroll problem impacting dozens of teachers yet
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
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
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
employee health insurance plan options to evaluate cost savings during
on-going bargaining with various unions which she never provided.

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

proper manner causing employees to leave the Human Resource
Department based on her actions and inactions as the Departments
leader.
12
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.

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
26. Dr. Kirsch failed to plan any staff development for Assistant Principals or
other administrators to assist with succession planning even though she
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.
Districts driver education program which she never provided.
recommendations concerning substitute teacher training and the lack of
sufficient substitutes which was never provided even though this was a
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.
Superintendent on a payroll problem impacting dozens of teachers yet
8. On several occasions during the 2013 2014 school year Dr. Kirsch was
District budgeting in the budget process which she never provided.
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
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
Association including disclosing District information regarding a teacher
grievance and an investigation into the conduct of District personnel.

15. During the 20132014 School year, Dr. Kirsch did not seek or receive
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,
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
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

be receiving pay and benefits to which the teacher was not entitled.
2. During the 20132014 School year Dr. Kirsch was asked to gather
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
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.

8. During the 20132014 School year Dr. Kirsch did not seek or receive

16
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,
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).
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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
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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
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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
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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
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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:
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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).
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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.
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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)
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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.
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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).
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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.
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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.
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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
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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.
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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:
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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)
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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.
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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

2017 Decision On Williamsville School District Firing of Kim Kirsch

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2017 Decision On Williamsville School District Firing of Kim Kirsch

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STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

In the Matter of the

DISCIPLINARY CHARGES BROUGH PURSUANT TO SECTION

-against- Decision of the Hearing Officer

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

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

2017 TR 683 6254.

final closing statements were received.

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

right to cross-examination each witness.

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

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

Respondents employment status is covered for disciplinary/discharge pursuant

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

Charge 1: Incompetence with 29 specifications.

listed herein below in original form.

hearing officer which is the subject of this instant matter.

CHARGES AND SPECIFICATIONS

CHARGE 1: INCOMPETENCE (Specifications 1-29).

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

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

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

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

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

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

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

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

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

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

CHARGE 2: MISCONDUCT (Specifications 1-24)

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

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

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

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

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

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

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

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

CHARGE 4. INSUBORDINATION SPECIFICATIONS (1-20)

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

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

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

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

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

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

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

Dated: December 8, 2014 Respectfully submitted,

Williamsville, New York s/_________________

Scott G. Martzlofff, Ed.D.

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

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

recognize that what she has done is wrong.

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

such communications destabilizes the Districts reputation and ability to function

proper result is her dismissal from employment from the District.

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

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

Directing the program for recruitment and selection of personnel;

Interview applicants and make recommendations to the Superintendent

Serve as the District spokesperson for all matters pertaining to Labor

Be responsible for personnel and payroll procedures;

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