Decision No. 13,169

(May 2, 1994)

Bond, Schoeneck & King, Esqs., attorneys for respondent, Donald E. Budmen, Esq., of counsel

SOBOL, Commissioner.--Petitioner is a resident and taxpayer of respondent North Syracuse Central School District. He appeals from action taken by respondent board at its regular meeting of September 13, 1993, when it approved a collective bargaining agreement with the North Syracuse Education Association covering the term from July 1, 1993 through June 30, 1996. The appeal must be dismissed.

Petitioner has set forth voluminous factual, statistical, and financial information which he claims illustrates the disparity between salary increases granted by the district since 1985 and those granted in local private industry during the same period. Petitioner claims, for example, that as a result of these increases, approximately two-thirds of the district's teachers now have a base salary in excess of $36,000 and that school district taxes have increased 71.2% between 1986 and 1993.

Petitioner claims that these increases are a huge burden for district taxpayers and that respondent board is "seriously out of touch with where the money comes from and the economic environment which determines its availability." Petitioner requests that I order the board of education to abrogate and renegotiate the 1993 collective bargaining agreement with the North Syracuse Education Association and that I order an evaluation of economic conditions in the North Syracuse School District.

Respondent disputes many of the factual assertions made by petitioner. Respondent also asserts eight affirmative defenses. Some of them are factual in nature, and some are legal defenses. Among the latter, respondent asserts that petitioner failed to state a claim upon which relief can be granted, that the Commissioner has no authority to amend collective bargaining agreements, that petitioner failed to satisfy his burden of proof, that petitioner lacks standing because he failed to allege and prove sufficient injury to himself and that the North Syracuse Education Association is a necessary party in view of the relief sought.

As a threshold matter, I must reject certain portions of petitioner's reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR '275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Pronin, 27 Ed Dept Rep 203). Similarly, a reply may not be used to raise new issues (Appeal of Ver Hunce, et al., 26 Ed Dept Rep 340). I note that petitioner's reply contains new allegations and material. While it may be proper for petitioner to respond to that portion of one of respondent's affirmative defenses which discussed the use of Excellence in Teaching funds, petitioner may not go forward with a new claim of misuse of such funds as part of his reply.

With respect to the merits, I find that petitioner failed to set forth a claim upon which relief can be granted. Although petitioner focuses on the most recent collective bargaining agreement, his petition is apparently directed at nearly a decade of increasing taxes and escalating costs under collective bargaining agreements. While I may be sympathetic to some of petitioner's arguments, I have no authority, as respondent points out, to direct the board to violate a collective bargaining agreement. As noted by respondent, the board of education is charged with the management of the district, including the employment of teachers and other personnel as well as the conduct of the district's educational program (Education Law ''1709 and 1804). Moreover, pursuant to Civil Service Law ''202, 203 and 204, a school board is required to negotiate in good faith with a recognized or certified labor organization.

Petitioner's remedy lies in the political arena. Under our system of education controlled by locally elected school boards, if petitioner disagrees with what he sees as the continued escalation of taxes and contract settlements, he would be better advised to join with others of like mind to seek control of his local board of education through the electoral process.

Respondent's request to serve and file a sur-reply to certain paragraphs of petitioner's reply is denied as academic.

I have considered the other contentions of the parties and found them without merit.

THE APPEAL IS DISMISSED.

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