Decision No. 13,172

(May 6, 1994)

SOBOL, Commissioner.--Petitioners appeal a decision of the Board of Education of the Copake-Taconic Hills Central School District ("respondent board") finding no probable cause to pursue disciplinary action against respondent Muriel Lanciault ("Lanciault"). The appeal must be dismissed.

On December 16, 1993, petitioners filed a complaint of incompetency against Ms. Lanciault, Principal of Taconic Hills High School. Petitioners alleged in their complaint that during the 1991-1992 school year, Ms. Lanciault acted incompetently as the supervisor of a tenured, certified teacher who was under investigation by the State Education Department ("SED") pursuant to Part 83 of the Commissioner's regulations. Although the facts and circumstances of that investigation are not at issue here, the history of petitioners' involvement relative to that investigation is useful in understanding the circumstances giving rise to this appeal.

In the spring of 1991, petitioners contacted respondent board's then-superintendent upon learning that their 27-year old son allegedly had sexual encounters ten years earlier with an English teacher at the high school. Petitioners and their son then met with SED officials, who initiated an investigation of the teacher. Petitioners subsequently discovered that their younger son had also allegedly been propositioned by the same teacher.

The teacher resumed his regular teaching responsibilities at the high school in September 1991. SED charged the teacher under Part 83 in January 1992. In July 1992, the teacher resigned his position and voluntarily surrendered his license in lieu of a hearing. In October 1992, the teacher applied for a job in another state at a company where petitioners' younger son coincidently worked. The teacher allegedly presented the prospective employer with a letter of recommendation from Ms. Lanciault. When he encountered petitioners' son, the teacher left and presumably took the letter with him.

Petitioners attended numerous board meetings from November 1992 through September 1993, making repeated inquiries of how the teacher in question was supervised during the 1991-1992 school year while the investigation into his moral character was ongoing. They then filed a complaint against Ms. Lanciault, claiming that she had granted the teacher extra privileges and thus encouraged a relationship of trust between this teacher and students even though he was under investigation for sexual misconduct. These privileges included allowing him to act as a mentor in a new skills program (PASS), act as spokesperson for the program before parents and the board, supervise a chess club and offer his services as a tutor. Petitioners also objected to Ms. Lanciault writing a letter of recommendation for the teacher.

Respondent board's new superintendent, who assumed his duties in February 1992, investigated the complaint and recommended that no further action be taken. Respondent board subsequently found no probable cause to take any action. This appeal ensued on January 19, 1994.

Before reviewing the merits, I must address several procedural issues. Petitioners offered new allegations and exhibits in their reply which were not included in the petition. They also requested leave under 8 NYCRR 276.5 to file two separate supplemental filings on March 12 and March 28, 1994. The first supplemental filing contained additional affidavits and minutes of respondent board's meetings. The second supplemental filing contained an affidavit from one petitioner with exhibits.

In cases such as this where petitioners are not represented by counsel, a liberal interpretation of the rules is appropriate, particularly where there is no evidence of prejudice to the opposing party (Appeal of Wheeler, et al., 33 Ed Dept Rep 61; Application of a Child with a Handicapping Condition, 28 id. 519). In that vein, I reviewed the reply and did not reject outright the supplemental filings. However, under 8 NYCRR 275.3 and 275.14, the purpose of a reply is to respond to procedural defenses or new material contained in an answer (Appeal of Post, 33 Ed Dept Rep 151; Appeal of Eastman Kodak, 32 id. 575). A reply is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (Appeal of Eastman Kodak, supra; Appeal of Taber, et al., 32 id. 346). Accordingly, I have not considered the portion of the reply that contains new allegations or exhibits.

As for the supplemental filings, with the exception of the meeting minutes, which were apparently not made available to petitioners in time to be included in the petition, the affidavits and exhibits predate the petition and were available to petitioners before they commenced their appeal and thus could have been included in the petition. Therefore, the meeting minutes are accepted as an annex to Exhibit 13 of the original petition, but the other material is rejected as untimely (Appeal of Bosco, et al., 32 Ed Dept Rep 554). Even if petitioners' documents had been timely, they relate to the underlying nature of the Part 83 investigation. Accordingly, they are not germane to the issue under appeal, namely respondent's failure to pursue disciplinary action against Ms. Lanciault.

Petitioners request that I compel respondent board to investigate more thoroughly the complaint against Ms. Lanciault and to bring disciplinary charges. They are dissatisfied with respondent board's decision and claim that the superintendent's investigation of Ms. Lanciault was biased because he had previously recommended Ms. Lanciault for tenure at the end of the 1991-1992 school year.

A board of education has broad discretion to determine whether disciplinary action against a tenured employee is warranted. However, there must be a reasonable basis for concluding that disciplinary action is unwarranted (Appeal of Anderson, 33 Ed Dept Rep 322; Appeal of Bradway, 33 id. 317; Appeal of Wheeler, supra; Appeal of Allert, 32 id. 538; Appeal of Mitzner, 32 id. 15). Based on my review of the record, I conclude that respondent board's determination not to bring disciplinary action against Ms. Lanciault was reasonable. Additionally, the superintendent's recommendation to respondent board appears reasonable and without bias.

The record indicates that the superintendent thoroughly investigated each of petitioners' claims concerning special duties accorded the teacher by Ms. Lanciault. That investigation revealed that although the teacher did perform the school related activities complained of by petitioners, Ms. Lanciault did not bestow preferential treatment upon the teacher. To the extent that the teacher made presentations in a public forum, the investigation revealed that his peers selected him to do so, not Ms. Lanciault. Ms. Lanciault was directed by the superintendent and his predecessor to let the teacher maintain his usual duties and responsibilities, which included these activities, in an effort to properly balance the teacher's due process rights while under investigation with the need to protect the safety and well-being of the students. The record reveals that Ms. Lanciault followed those directions and in addition, carefully monitored the teacher's activities almost daily.

Finally, as for the letter of recommendation, there is much confusion about its existence and its contents. We know of its existence only by hearsay since it was never produced by school officials despite repeated requests for it. Assuming that Ms. Lanciault did write a letter, whether as a reference or recommendation, her doing so, while regrettable under the circumstances, did not constitute incompetency subject to disciplinary proceedings.

Petitioners and their sons are understandably aggrieved by the teacher's inappropriate behavior which gave rise to the Part 83 action. However, the issue of Ms. Lanciault's competency during that investigation must be separated from the passion generated by the Part 83 case. There is nothing in the record to compel me to conclude that the board abused its discretion by declining to institute disciplinary proceedings against Ms. Lanciault.

THE APPEAL IS DISMISSED.

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