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Decision No. 12,894

Appeal of ROBERT KOLLER, on behalf of his daughter Patricia Koller, from action of the Board of Education of the Sharon Springs Central School District relating to his daughter's medical notes and to the actions of the superintendent and other school personnel.

Decision No. 12,894

(March 8, 1993)

Bellcourt & Bartlett, Esqs., attorneys for respondent, George R. Bartlett, III, of counsel

SOBOL, Commissioner.--Petitioner, on behalf of his daughter, appeals from the actions of respondent Board of Education of the Sharon Springs Central School District ("respondent") concerning respondent's failure to honor his daughter's medical notes. Petitioner also appeals from respondent's actions with regard to the alleged harassment of his daughter by the school superintendent and other school personnel. The appeal must be dismissed.

During the 1991-1992 school year, petitioner's daughter was a student in the respondent school district. Petitioner alleges that his daughter was injured because respondent ignored her medical problems. Petitioner also contends that respondent failed to take into account his daughter's medical conditions in computing excused absences and late arrivals. In addition, petitioner alleges that during the school year, respondent allowed his daughter to be harassed and humiliated by school personnel, particularly by the superintendent, Mr. Wissick. Petitioner demands an investigation of the entire school staff and a written reprimand or replacement of the school physical education teacher for her part in failing to honor his daughter's medical notes.

Respondent raises numerous procedural defenses. Specifically, respondent contends that the petition must be dismissed because it fails to contain a clear and concise statement of petitioner's claim entitling petitioner to relief, fails to allege that petitioner is aggrieved by any action which gives rise to an appeal under Education Law '310, is untimely, is not verified and does not contain the address of petitioner or petitioner's attorney, and fails to state a valid claim under Education Law '306.

I find that this appeal is defective on several procedural grounds. First, '275.10 of the Commissioner's Regulations provides that a petition:

shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

In this case, the allegations are not specific enough to enable respondent to address them adequately. The petition does not identify the "official act or decision" from which the appeal is taken (Education Law '310[7]). Rather, it merely states that the district "has on numerous occasions failed to honor medical notes in their possession." With regard to the claim of harassment, the petition merely states that "the school district has allowed some of the students to be harassed or humiliated in front of their classmates." Although a liberal interpretation of '275.10 is appropriate when the petitioner is not represented by counsel and there is no prejudice to the opposing party (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 519), in this case the petition is so vague and unclear that the respondent is deprived of any meaningful opportunity to respond. Therefore, the petition must be dismissed.

The petition must also be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused for good cause shown (8 NYCRR '275.16). Although it is not entirely clear from his papers, the petitioner appears to be appealing from the decision of the school district not to take any action against the superintendent. Apparently, the petitioner met with the board of education on August 12, 1992 to discuss his daughter. Even if this meeting could be construed as the board's decision not to take any action against the superintendent, thus making the petitioner's appeal timely, this part of the appeal is moot because the superintendent is no longer employed by the district.

In his papers, petitioner also refers to several incidents which occurred during the 1991-1992 school year, which ended more than 30 days before this appeal was commenced. In no case did any incidents occur after July 1, 1992, which was more than 30 days before this petition was served on September 10, 1992. Therefore, an appeal contesting those incidents is clearly untimely.

Petitioner's alleged failure to verify the petition properly and include petitioner's address as required by 8 NYCRR ''275.4 and 275.5 is not a basis for dismissal in this case. The original petition filed with my Office of Counsel is properly verified and contains petitioner's address. Although petitioner should have served on respondent a conformed copy with his address and verification, his failure to do so will be excused since respondent has not shown any resulting prejudice (Matter of Brandon, 22 Ed Dept Rep 223; Matter of Mangan, 22 id. 82).

Finally, respondent's last procedural defense, that the petition fails to state a claim under Education Law '306, is not grounds for dismissal since petitioner appears to be requesting relief pursuant to Education Law '310 and since petitioner already withdrew his request for the removal of the superintendent.

Even if this case were not dismissed on procedural grounds, it would still be dismissed on the merits. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Pickreign, 28 Ed Dept Rep 163) and the burden of demonstrating a clear legal right to the relief requested (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). The petitioner has not provided sufficient evidence to establish the facts alleged in the petition. The petitioner has not shown that respondent wrongfully failed to honor any of his daughter's medical notes and has not proven that his daughter was injured by respondent's conduct. Likewise, the petition fails to establish that either the superintendent or any of the school's employees harassed petitioner's daughter.

Petitioner's supporting papers, which were filed with my Office of Counsel, apparently were not served on respondent with the petition as required by 8 NYCRR '275.8. Petitioner never applied for or received permission to file his supporting papers with my Office of Counsel as required by 8 NYCRR '276.5. Therefore, they are not properly before me. However, even if I were to consider these papers, they do not establish that respondent wrongfully failed to honor any medical notes or permitted the harassment of petitioner's daughter.

Petitioner submitted his daughter's medical records which show that his daughter suffered several injuries and had two asthma attacks at home. However, petitioner failed to submit any notes or letters to respondent regarding his daughter's medical condition. There is no evidence that respondent's actions contributed to any injuries or attacks, that respondent failed to excuse any absences related to these injuries or attacks or that petitioner's daughter was injured by any actions of respondent.

Petitioner also objects to a particular statement made by the physical education teacher. Even if this allegation were true, it does not appear to rise to the level of harassment. Petitioner's remaining allegations charging harassment are wholly conclusory and must be dismissed.

Similarly, petitioner has not demonstrated a clear legal right to the relief requested, namely an investigation of the entire school staff and written reprimand or replacement of the physical education teacher. In sum, petitioner has not met his burden of proof and the petition must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE