Decision No. 13,705

(November 22, 1996)

Kaufman & Feit, Esqs., attorneys for petitioner, Matthew Kaufman, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent, Ronald Longo, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent board's failure to appoint her to an Office Typist position. Petitioner also seeks the removal pursuant to Education Law '306 of respondent Diana Greene as Superintendent of Schools. The appeal must be dismissed.

Petitioner alleges that in January 1995, while working as a replacement for respondent's high school guidance secretary who was then on medical leave, she uncovered what appeared to her to be "a pattern of serious nonconformities and irregularities in the Guidance Office concerning the maintaining and handling of Guidance Office records and documents." Petitioner alleges she observed "numerous instances" of "irregularities" such as improper filing of student standardized test scores and report cards, confidential student information and letters to parents "strewn about the office, lying out in the open on desks and cabinets," original screening forms, RCT scores, health records, failure notices to parents and other confidential records "stacked in piles on desks, mislabeled and/or misfiled." Petitioner further alleges that many of the documents were over two years old, and some were missing, misplaced and scattered in drawers, in side panels of desks and "obviously ignored for any future filing." Petitioner also alleges that this situation had existed and continued for a period of over two years. In addition, petitioner alleges that as a result of this misfiling, confidential records for students who left the school district were not forwarded to those students' new schools. Petitioner also alleges that student grade transcripts were missing from files. Petitioner claims that she notified her immediate superior, an individual who was a guidance teacher in that office but who is no longer employed with respondent's district, and that together they conducted an inspection and examination of the student records at issue. Petitioner alleges that the guidance counselor notified the interim high school principal, as well as the guidance secretary, of the condition of the files.

On March 31, 1995, the guidance secretary retired and the interim high school principal asked petitioner to assume the position of guidance secretary for the remainder of the school year. Petitioner alleges that the retired guidance secretary refused to assist petitioner in assuming the duties of her new position. In June 1995, the principal asked petitioner to remain as a full-time Office Typist through the summer. Thereafter, respondent Superintendent Greene formed an advisory committee, which included the retired guidance secretary, to assist the superintendent in making a recommendation to respondent board to permanently fill the position. The committee interviewed candidates, including petitioner, in late August 1995. On August 30, 1995, respondent board, upon the recommendation of respondent Greene, appointed an individual other than petitioner to the position. Petitioner subsequently commenced this appeal by serving her petition on respondents on September 21, 1995.

Petitioner alleges that she was denied the position of Office Typist in retaliation for reporting the condition of the guidance office records. Petitioner also alleges that respondents prevented petitioner from competing openly and fairly for the position. Petitioner alleges that respondents improperly formed the advisory committee to retaliate against her by: including the retired guidance secretary, against whom petitioner had made allegations and who is a personal friend of the board president; including the respondent superintendent, who petitioner alleges would not normally sit on such a committee; and failing to include any guidance counselors on the committee. Petitioner also alleges that respondent intentionally provided her with inadequate notice of her scheduled interview with the committee. Petitioner alleges as well that respondents improperly considered age as a factor in filling the position and that her constitutional rights were violated. Petitioner further alleges that respondents acted improperly in failing to investigate and correct the alleged condition of the guidance office records and to take action against the retired guidance secretary for her alleged failure to properly maintain such records. Petitioner requests that I remove Superintendent Greene for her alleged misconduct and that I vacate respondent board's appointment of the individual currently serving in the Office Typist position. Petitioner also requests that an independent investigation be conducted by the District Superintendent.

Respondents deny petitioner's allegations and raise several affirmative defenses. Respondents contend that the appeal should be dismissed for petitioner's failure to join as a necessary party the individual appointed as Office Typist. Respondents also contend that the appeal must be dismissed because petitioner lacks standing to raise claims and seek relief relating to the maintenance of the guidance office records. In addition, respondents contend that I lack jurisdiction to hear petitioner's constitutional claims, as well as her claim that they improperly considered a candidate's age as a selection criterion for the Office Typist position.

As a threshold matter, respondent requests that I disregard material set forth in petitioner's reply, which is not found in the petition and is beyond the scope of what may be included in a 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 which should have been included in the petition, and I will not consider material that has been belatedly added by petitioner in the reply which is not responsive to respondent's answer (Appeal of Crawmer, 35 Ed Dept Rep 206).

With regard to standing, an individual may not maintain an appeal pursuant to Education Law '310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Garwood, 35 Ed Dept Rep 297, 298; Appeal of Shabot, 35 id. 289, 290). To the extent petitioner seeks review of respondent board's determination to appoint another individual to the position of Office Typist, she has standing since she is aggrieved by respondent's failure to appoint her. Similarly, to the extent respondent Greene is alleged to have acted improperly with respect to the board's appointment determination, petitioner has standing to seek review of the superintendent's actions. I also find that petitioner has standing to raise the issue of respondent board's failure to act with respect to the alleged recordkeeping irregularities, since the matter relates to her employment in the high school guidance office. Although petitioner resigned her employment on September 25, 1995, petitioner alleges the resignation was a result of respondent's directing her to assume additional and improper work responsibilities, allegedly in retaliation for petitioner's reporting of the recordkeeping irregularities. Lastly, petitioner seeks relief against respondent superintendent by removal pursuant to Education Law '306. Petitioner's status as a resident and taxpayer is sufficient to establish standing to seek removal of the superintendent for alleged misconduct (Matter of Viviano and Karamessinis, 18 Ed Dept Rep 263, 264-265).

Respondent also contends that the appeal must be dismissed for failure to join Ann Gallagher, the individual appointed to the Office Typist position. A party whose rights would be adversely affected by a determination for the Office Typist position of an appeal in favor of petitioner must be joined as a necessary party (Appeal of Bonanno, 33 Ed Dept Rep 610, 612). Included in the relief requested by petitioner is a request that I vacate respondent Board's appointment determination for the Office Typist position. If petitioner prevails in this appeal, Ms. Gallagher's appointment would be voided and her rights thereby adversely affected. Therefore, Ms. Gallagher is a necessary party and the appeal must be dismissed for failure to join her.

The appeal must also be dismissed on the merits. In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which relief is sought (Appeal of Pinckney, 35 Ed Dept Rep 461, 464). Other than conclusory statements petitioner offers no evidence to substantiate her principal allegations. Bare allegations and conclusory statements are insufficient to prove that respondents retaliated against petitioner or otherwise acted improperly (Appeal of Ryan, et al., 35 Ed Dept Rep 188; Appeal of Pinckney, supra). In contrast to petitioner, respondents offer numerous affidavits in support of their position, including those of the board president, a board member, the superintendent and her immediate predecessor, the high school principal and his immediate predecessor and the retired guidance secretary. These affidavits directly contradict petitioner's key allegations and indicate that respondent board of education received no information, from petitioner or otherwise, concerning alleged irregularities in the high school guidance office records and that the superintendent was unaware of petitioner's allegations until she received a copy of an August 25, 1995 letter that petitioner's husband wrote to the BOCES district superintendent. The previous interim high school principal, who petitioner alleges was informed by the guidance counselor of petitioner's concerns regarding the guidance records, denies that he discussed the issue of the records with any board members or that he in any way connected petitioner with such issue. The interim principal also indicates that although he did discuss with the then interim superintendent an issue regarding responsibility for certain student records, it was not the primary focus of their conversation and that at no time did he connect petitioner to such issue. The interim principal's statements are corroborated by the interim superintendent's affidavit.

Furthermore, I note that petitioner alleges that respondent used age as a criterion for selecting a candidate who was "younger than" petitioner for the Office Typist position. To the extent petitioner alleges a violation of her civil rights in that respondent has discriminated against petitioner on the basis of age, an appeal to the Commissioner is not the proper forum for addressing such claim (Appeal of Nicholaou-Guirguis, 32 Ed Dept Rep 439). Neither is an appeal to the Commissioner an appropriate forum to adjudicate claims involving alleged violations of the Family Educational Rights and Privacy Act (20 USC 1232g), otherwise known as the "Buckley Amendment" (Appeal of Richardson, 29 Ed Dept Rep 70, 73).

Lastly, with respect to petitioner's request that I undertake an investigation of the actions of respondent board members, an appeal to the Commissioner pursuant to Education Law '310 is appellate in nature and does not provide for investigations (Appeal of Vitek, 26 Ed Dept Rep 345). In any event, as discussed above, petitioner has failed to establish any facts that would warrant an investigation.

Upon my review of the record, I find that petitioner has failed to establish sufficient facts to entitle her to the relief she seeks.

THE APPEAL IS DISMISSED.

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