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Decision No. 13,121

Application of JACQUIE WYLIE for the removal of Albert Thompson, Superintendent, Mary E. Dougherty, Associate Superintendent, and Johnnie M. Mayo, Assistant Superintendent, of the City School District of the City of Buffalo for neglect of duty.

Decision No. 13,121

(February 28, 1994)

Hon. Laurence K. Rubin, Corporation Counsel, attorney for respondents, David F. Mix, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks the removal of the superintendent, associate superintendent, assistant superintendent and principal of School No. 57 of the Buffalo City School District. She also requests the transfer of her daughter from School No. 57 to another school in the Buffalo district. The application must be denied.

The petition in this appeal is a perfunctory one-page document, in which petitioner states that on some unspecified date, her young daughter's teacher refused to let the child go to the lavatory and the child subsequently wet herself. Petitioner contends that the respondents should be removed for failure to respond to her inquiries on this matter. Respondents deny knowing anything about this matter and offer no evidence regarding the incident involving petitioner's daughter.

As a threshold matter, I find unacceptable respondents' response of a general denial to this petition. Respondents are required pursuant to 8 NYCRR 275.12 to answer a claim in a petition with a clear and concise statement of its defenses. A mere denial of the allegations is not sufficient. Moreover, respondents must allege the substantive facts upon which they rely in their answer. They have not done so here.

Further, while petitioner requests the removal of the principal of School 57, petitioner has failed to join that individual as a party in this appeal. Since the principal would be adversely affected if I granted the relief requested by petitioner, petitioner's failure to join that individual as a party respondent necessitates dismissal of the appeal as to her (Appeal of Kellogg, 33 Ed Dept Rep 187; Matter of Weiss, 19 id. 308).

Nevertheless, petitioner's application must be denied on the merits. Education Law '306 authorizes the Commissioner of Education to remove a school officer for wilful violation or neglect of duty under the law (Education Law '306(1); Application of Steenrod, 32 Ed Dept Rep 490; Application of Sabuda, 31 id. 461). In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Application of Steenrod, supra; Appeal of Garnett, 32 Ed Dept Rep 91). Section 277.1 of the Regulations of the Commissioner of Education requires that an application seeking removal of a school officer set forth

the willful violation of law, neglect of duty, or willful disobedience of a decision, order or regulation of the commissioner charged against the officer and the facts by which it is established ... [which] must be set forth with such certainty as to time, place and all other pertinent details, as to furnish the officer with precise information as to what he is expected to meet; ...

In this case, respondents Thompson, Dougherty and Mayo maintain that they were unaware of petitioner's attempts to contact them and knew nothing about the incident in question until served with this appeal. Petitioner offers no proof to counter respondents' assertions. Moreover, there is no evidence that respondents bear any personal responsibility for the incident.

While administrators should endeavor to be responsive to parents' concerns, respondents were under no legal obligation to respond to petitioner's telephone calls on this matter. Accordingly, their failure to do so does not give rise to a willful violation of law or neglect of duty warranting respondents' removal under Education Law '306. Thus, petitioner has failed to sustain her burden of establishing that respondents have acted improperly in this matter.

Regarding petitioner's transfer request, a board of education has broad discretion to manage and administer the affairs of its school district, including the assignment of pupils to schools therein (Appeal of Mulholland, 32 Ed Dept Rep 384; Matter of Older, et al. v. Board of Ed., 27 NY2d 333). Moreover, pupil assignments will be overturned only when there is a clear showing that the board acted arbitrarily, capriciously or contrary to sound educational policy (Appeal of Cullen, 32 Ed Dept Rep 179; Matter of Addabbo v. Donovan, 32 AD2d 383, affd 16 NY2d 619). Since petitioner has presented no proof that her daughter requires a transfer or, indeed, that she has requested such a transfer from school officials, there is no basis to grant her request.

Notwithstanding my dismissal of this appeal on legal grounds, I am concerned about the allegation that a young child was denied access to a lavatory and forced to urinate on her clothes. I urge respondents to review this matter and determine how such an incident can be avoided in the future.

THE APPLICATION IS DENIED.

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