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Decision No. 12,742

Appeal of BERNARD M. MITZNER from action of the Board of Education of the Goshen Central School District refusing to initiate disciplinary action against an administrator.

Decision No. 12,742

(July 2, 1992)

Shaw & Silveira, Esqs., attorneys for respondent, Garrett L. Silveira, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the failure of the Board of Education of the Goshen Central School District ("the respondent") to initiate a disciplinary proceeding against a school administrator in response to petitioner's request. The appeal must be dismissed.

Petitioner is a resident of respondent's district. On May 21, 1990, petitioner requested that the respondent decide whether to bring disciplinary charges against a principal for lying under oath at a '3020-a hearing. On May 29, 1990, the district clerk informed petitioner that although respondent would not be able to decide the matter at its June 4, 1990 board meeting as petitioner requested, he would be informed of any subsequent action by the board. Apparently, respondent never replied to petitioner's request. This appeal ensued on February 4, 1991.

Petitioner alleges that despite his repeated requests, respondent never notified him or made a determination on whether disciplinary action against the principal was proper. Petitioner requests that I order respondent to make its determination. He also asks that I take punitive measures against the board of education for its failure to make a determination in a timely manner.

Respondent contends that the petition is untimely since it was not commenced within 30 days from the time respondent made its determination on his request. In particular, respondent argues that by granting the principal tenure in the interim it explicitly and implicitly determined that disciplinary action was unwarranted thereby addressing petitioner's request. Respondent also alleges that the principal is a necessary party to this appeal, and, as such, that petitioner's failure to name her requires dismissal of the petition.

Regarding the procedural matters, respondent contends that the appeal must be dismissed as untimely. An appeal must be commenced within 30 days of the making of the decision or the performance of the act complained of, except upon good cause shown (8 NYCRR 275.16). Petitioner repeatedly sought respondent's determination on his request for disciplinary action and never received a response. Although respondent claims that by granting the principal tenure it denied petitioner's request for disciplinary proceedings, the argument is not persuasive. Although granting tenure to the principal may have resolved the matter as far as respondent was concerned, respondent never notified petitioner that it had acted on his request. Therefore, I will not dismiss the appeal as untimely. Furthermore, I note that despite petitioner's repeated requests to the board, respondent never informed petitioner that a determination had been made, as it asserts herein, by virtue of its tenure appointment.

Respondent also asserts that petitioner's failure to join the principal as a necessary party warrants dismissal of the appeal since petitioner seeks an order against respondent to decide whether disciplinary proceedings should be brought against her. I find that petitioner's failure to join the principal is not dispositive of the appeal because the sole issue before me is whether, under the circumstances, respondent should be ordered to make a determination on petitioner's request for disciplinary action (Appeal of Young, 26 Ed Dept Rep 152). Since petitioner only asks that I order respondent to make a determination on whether it will take disciplinary action and does not seek relief that would, in any way, compromise the principal's rights or duties, I find respondent's affirmative defense groundless.

Disciplinary action by a board of education against certain employees is authorized by Education Law '3020-a. A board of education has broad discretion to determine whether disciplinary action is warranted (Appeal of Magee, 30 Ed Dept Rep 479; Appeal of Antonelli, 28 id. 362). However, there must be a reasonable basis for concluding that disciplinary action is unwarranted (Appeal of Kantor, 31 Ed Dept Rep 319). Petitioner contends that the principal perjured herself during testimony in the '3020-a proceeding. As evidence to support his allegation, petitioner compares the statements she made at the hearing with a taped conversation discussed during the hearing. Based on my review of the record before me, I am unable to conclude that, if accurate, the evidence presented by petitioner would support a finding that the principal perjured herself, as petitioner alleges. Therefore, I am unable to conclude that the board of education abused its discretion by declining to bring disciplinary proceedings against the principal.

However, I cannot condone respondent's failure to respond to petitioner's request in a reasonable time and find its claim that petitioner should have known that disciplinary measures would not be taken when the principal was granted tenure disingenuous. To avoid such unnecessary litigation, I urge respondent to respond to district residents' requests in a timely manner.

THE APPEAL IS DISMISSED.

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