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Decision No. 13,793

Appeal of SOONKYU K. DAVIS, on behalf of JAMES A. DAVIS,III, from action of the Board of Education of the York Central School District regarding the removal of Dan Caraher, Director of Athletics

Decision No. 13,793

(July 19, 1997)

 

Laura S. Dudley, Esq., attorney for respondent

Petitioner seeks the removal of two coaches from their positions at the York Central School District. The appeal must be dismissed.

Petitioner is a naturalized Korean-American. Her son, James ("JD"), an American born Amerasian, has been a student in respondent's district since first grade. JD was apparently very involved in athletics and played on the district's modified football team for two years in seventh and eighth grades. Petitioner alleges that Dan Caraher, who petitioner states is the district's athletic director, started verbally abusing her son in 1993, when JD was in sixth grade. Petitioner specifically asserts that Mr. Caraher screamed threatening and profane words at her son. Petitioner, her husband and JD met with Mr. Caraher and the principal, Dr. Joseph Scanlon, the morning following this matter. After this meeting, petitioner and her husband decided to give Mr. Caraher "the benefit of the doubt" and did not pursue the matter further. Petitioner states, however, that JD expressed his concern at this meeting that he would not be able to play football in high school, apparently because of Mr. Caraher's attitude towards him.

In 1996, Mr. Caraher's son, Ryan, became the offensive coach of the junior varsity football team. Petitioner alleges that Ryan Caraher did not give JD a fair opportunity to participate on the football team, unfairly criticized him and called him names "with a threatening attitude." Petitioner contends JD was "emotionally forced" to quit the team with only three games left in the season, because Ryan Caraher told him at practice he would not play the rest of the season. Petitioner, her husband and JD met several times with Ryan Caraher, Dan Caraher, Dr. Scanlon and the defensive coach of the football team, but apparently petitioner was unsatisfied with the outcome of those meetings.

Petitioner states that on October 31, 1996, after the last football game, JD was waiting inside the school building for a friend to go "trick or treating" when some unknown person asked JD to turn off the lights in the locker room. JD reached his hand inside the locker room and turned off the lights. According to petitioner, the father of one of the football players yelled at JD to turn the lights back on, told him to leave since he wasn't supposed to be there, grabbed his arm and shoved him towards the door. Dan Caraher then allegedly entered the room and shouted at JD to leave. Petitioner asserts that Dan Caraher followed JD into the parking lot and continued to scream at him. JD summoned his parents and they together returned to the school where they had another confrontation with Dan Caraher and the parent who had allegedly shoved JD. The following morning, JD and his parents went to see Dr. Scanlon about this incident. Dr. Scanlon then spoke with Dan Caraher and the parent involved and told petitioner he would report to the Superintendent.

On November 5, 1996, a meeting was held with Dr. Scanlon, Dan Caraher, petitioner, her husband, JD and the Superintendent regarding the October 31 incident. The meeting was adjourned without any result. On November 25, 1996, petitioner made a presentation to respondent concerning the above described incidents. On December 11, 1996, petitioner received a letter from respondent, dated December 9. The letter stated in pertinent part:

All those interviewed are aware that the District expects each community member and student to be treated with respect. If at any time you are treated inappropriately by any District personnel, we encourage you to report such behavior to the District.

We hope that this matter may be put behind us and that we may work together toward a cooperative relationship.

Disappointed with this response, petitioner commenced this appeal of January 8, 1997.

Petitioner seeks the removal of Dan Caraher and Ryan Caraher from their positions in the York Central School District to prevent further psychological damage to JD. Respondent contends that the petition fails to state a cause of action, fails to exhaust administrative remedies, is untimely and beyond the Commissioner's jurisdiction. Moreover, respondent argues it did not threaten or discriminate against JD or deny him an equal chance to participate in athletics, and neither did Dan Caraher. Respondent also contends that it properly investigated the October 31, 1996 incident and reasonably and appropriately exercised its discretion in its December 9, 1996 determination.

Before reaching the merits, I must first address several procedural issues. Respondent states that the appeal is untimely but offers no reasons or argument in support of this contention. Section 275.16 of the Commissioner's regulations requires that an appeal to the Commissioner be instituted within thirty days from the making of the decision complained of. Petitioner is appealing respondent's determination in its December 9, 1996 letter. The record shows the petition was served on January 8, 1997. In the absence of any contrary evidence offered by respondent, I find that the petition is timely.

Respondent also asserts that petitioner "has only spoken to the Board of Education regarding the October 31, 1996 incident and therefore has failed to comply with procedural requirements and conditions precedent to filing a petition." Respondent fails to cite any specific requirements and offers no evidence or argument in support of this assertion. As stated above, petitioner is appealing respondent's December 9, 1996 determination. Since that was respondent's final action in this matter, I will not dismiss this appeal for failure to comply with unarticulated procedural requirements.

Although petitioner seeks the removal of both Dan Caraher and Ryan Caraher as coaches, petitioner has joined only Dan Caraher as a party to this proceeding. Since a decision on the merits would involve the rights of Ryan Caraher, he is a necessary party to this appeal and, therefore, should have been joined (Appeal of Cardinal, 34 Ed Dept Rep 76; Appeal of Carney, 33 id. 430). Although Ryan Caraher is mentioned in the petition and petitioner seeks relief against him, he was not named as a respondent nor was he served in accordance with 8 NYCRR '275.8(a). A party must be named as a respondent in the caption of the petition and served with a copy of the notice of petition to allow him to defend his position (Appeal of Deitz, 35 Ed Dept Rep 261, Appeal of Haff, 35 id. 130). There is no evidence that Ryan Caraher was joined as a party to this appeal. Accordingly, petitioner's failure to join him requires the dismissal of her claim for relief against him (Appeal of a Student with a Disability, 36 Ed Dept Rep 181).

Turning to the merits, 8 NYCRR '275.10 requires that a "petition contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." That is, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (Appeal of Pulvermacher, 36 Ed Dept Rep 333). In the instant appeal, although petitioner used the notice required under 8 NYCRR '277.1, "Practice on Application for Removal of School Officers," as opposed to the more general notice for a '310 appeal under 8 NYCRR '275.11, petitioner has failed to cite any legal authority for the Commissioner to remove either coach from his position. Additionally, although petitioner states her ethnicity and that of her son in the petition, and implies that this is the root of Dan Caraher's actions towards JD, petitioner offers only inferences of racial discrimination. Petitioner has not provided any substantial evidence to support her claim that JD was discriminated against because of his race, and respondent denies any discrimination against JD. Since petitioner bears the burden of establishing the facts upon which a claim for relief is made, the appeal must be dismissed.

Petitioner's claim must also be dismissed because the Commissioner is without authority to order the relief requested. To the extent petitioner seeks the removal of Dan Caraher, the authority for removal would be '306 of the Education Law. However, petitioner never cited this or any other legal authority in her petition. Moreover, even if petitioner had cited this authority, '306 does not apply in this case, because a coach is a district employee, not an officer subject to removal under '306 (Appeal of Federico, 35 Ed Dept Rep 269; Application of Morris, 35 id. 193; Appeal of Carney, 33 id. 430). For purposes of '306, "school officers" include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, superintendents of schools, or "other school officer[s]." Therefore, petitioner's requested relief is not within the Commissioner of Education's authority and the appeal must be dismissed for failure to state a claim upon which relief can be granted.

Petitioner essentially is seeking disciplinary action against Dan Caraher. However, it is the board of education which has authority to take disciplinary action against a school district employee. Moreover, a board of education has broad discretion to determine whether disciplinary action against an employee is warranted (Appeal of Rivenburg, 35 Ed Dept Rep 27; Appeal of Cardinal, 34 id. 76; Appeal of Karl, 34 id. 261; Appeal of Allert, 32 id. 538), so long as it has a reasonable basis to support its conclusion. Respondent asserts that it investigated the October 31, 1996 incident and interviewed all the parties. Respondent claims that its investigation revealed that JD turned off the lights while the team was showering, a parent told him to stop, JD and another student ignored directions and laughed at him. The parent grabbed the students by their jackets and escorted them to the door. Dan Caraher told them to leave school property. Furthermore, neither student was a member of the team and should not have been in the building. Respondent found that, based on this incident alone, no employee should be terminated. On the scant record before me, there is simply no basis to determine that respondent acted unreasonably or arbitrarily, or abused its discretion in declining to take disciplinary action against Dan Caraher.

Notwithstanding this disposition, I note that respondent's minimal answer to the allegations (which does not include any affidavits from the involved parent or other district personnel) does not engender confidence in the propriety of Mr. Caraher's behavior. I remind respondent that discrimination or inappropriate behavior by teachers or coaches, or any district employee for that matter, is not to be tolerated, and that it must be vigilant against any such behavior by those entrusted to teach and nurture children.

THE APPEAL IS DISMISSED.

END OF FILE