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Decision No. 14,041

Appeal of ROBERT and NANCY LIPPMANN, on behalf of SCOTT LIPPMANN, from action of the Board of Education of the Holland Central School District with regard to employee discipline.

Decision No. 14,041

(November 25, 1998)

Hodgson, Russ, Andrews, & Goodyear, LLP, attorneys for respondent, Jeff Swiatek, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Holland Central School District ("respondent") not to remove a school bus driver from his position and challenge respondent's investigation methods. The appeal must be dismissed.

On April 29, 1997, respondent's school bus driver, Merton Howard, allegedly kicked petitioners' ten-year old son, Scott, twice in the leg as Mr. Howard walked past him down the center aisle of the school bus. Petitioners reported this incident later that day by telephone to respondent's transportation supervisor, William Montgomery. Mr. Montgomery spoke with Mr. Howard about the alleged incident when Mr. Howard completed his runs that day. Mr. Howard denied that he had kicked Scott. Mr. Montgomery and Mr. Howard then phoned Mrs. Lippmann together, and Mr. Howard told her he had not kicked Scott, and called Scott a liar for accusing him of doing so.

Early the next morning, Scott was summoned to the school principal's office where Mr. Montgomery, Mr. Howard and the principal, Mr. George Weissenburger, interviewed him about the incident. Among other things, Mr. Howard told Scott during that conversation that Scott owed him an apology. According to school officials, the meeting ended on a positive note with a handshake between Mr. Howard and Scott.

Petitioners met subsequently with respondent's superintendent, Dr. Peter Roswell, on May 5, 1997. Petitioners supplied Dr. Roswell with five letters from other parents describing incidents involving alleged abusive conduct toward their children by Mr. Howard and questioning his fitness to drive a school bus. By letter dated May 8, 1997, Dr. Roswell informed petitioners of his determination that while Mr. Howard had inappropriately called Scott a liar during the phone conversation with Mrs. Lippmann, any contact that may have occurred between Mr. Howard and Scott on the bus was unintentional. The letter also stated that Mr. Howard had apologized to Scott for any contact.

On May 9, 1997, petitioners filed a report with the Erie County Sheriff's Department and Mr. Howard was charged with Harassment and Endangering the Welfare of a Child, to which Mr. Howard pleaded innocent. According to the submissions of the parties, those charges remain unresolved. On May 21, 1997, petitioners met with four members of respondent's board of education in Executive Session. The board president informed petitioners that the board was meeting for the convenience of petitioners and that the board would not answer or ask any questions other than to inquire what petitioners wanted the board to do. Apparently the meeting ended without a resolution of the matter. On August 13, 1997, petitioners commenced this appeal.

Petitioners contend that Mr. Howard deliberately kicked Scott twice in the shins and screamed at him. They also challenge the manner in which respondent investigated the incident and allege that Scott was intimidated when he was interrogated by three adults and that respondent never informed them that Scott was to be questioned. They further allege that an apology was demanded from Scott at that time, but that Mr. Howard did not apologize to Scott. They also contend that respondent's investigation was incomplete, because they failed to interview two of three children who petitioners identified as eyewitnesses to the incident. Petitioners request that Mr. Howard be removed from his position as a bus driver and that respondent cease its policy of interrogating children when they complain of abuse by respondent's employees.

Respondent contends that the appeal must be dismissed as untimely and for failure to join Mr. Howard, who they say is a necessary party. It further contends that Scott was never asked to apologize and that, instead, Mr. Howard apologized to Scott for any accidental contact that might have occurred. Respondent asserts that its decision not to take disciplinary action against Mr. Howard is justified and based upon an appropriate investigation of the incident and that its method of investigation is also appropriate.

Initially, I will address the procedural issues. Petitioners submitted a reply with exhibits. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Rampello, 37 Ed Dept Rep 153; Appeal of Lawson, 36 id. 450, Appeal of Brush, 34 id. 273). Therefore, I will not consider those portions of petitioners’ reply containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education under "310 of the Education Law must be brought within 30 days of the action complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioners argue that they never received a written decision from respondent, so their time to appeal has not expired. However, the record contains a letter from petitioners' attorney to respondent, dated May 22, 1997, the day after petitioners' meeting with respondent, which states that petitioners expected a determination on or before June 4, 1997 and would pursue other avenues of relief if no response was received by then. Further, respondent submits its attorney's affidavit stating that the attorney was in frequent contact with petitioners' attorney after the May 21st meeting, attempting to resolve the issue, up until June 27, 1997, when both sides agreed that a resolution was not possible. Additionally, Mr. Howard continued to drive a school bus through the end of the school year. Therefore, petitioners were effectively on notice that respondent would not remove Mr. Howard from his position by June 27, 1997, at the latest. Petitioners commenced this appeal on August 13, 1997, more than 30 days from that date. Accordingly, it is untimely and must be dismissed.

Even if the appeal were not dismissed as untimely, the claims seeking Mr. Howard's dismissal must be dismissed for failure to join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Schuler, 37 Ed Dept Rep 512; Appeal of Williams, et al., 36 id. 270; Appeal of Karliner, 36 id. 30). In this case, petitioners request that Mr. Howard be removed from his position, but fail to join him as a party to the appeal. Therefore, to the extent that the petition seeks relief against Mr. Howard, it must be dismissed.

Additionally, the claim against Mr. Howard must be dismissed as moot. Respondent has notified my Office of Counsel that Mr. Howard retired from his position as a school bus driver effective October 21, 1998. It is well settled that the Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Rollins, 38 Ed Dept Rep 192; Appeal of Boehm, 37 id. 208; Appeal of Lawson, 36 id. 450).

While the appeal must be dismissed on procedural grounds, I am compelled to comment further because of the seriousness of the charges. In my view, the investigation conducted by school officials was not reasonably calculated to ascertain the truth. First, school officials did not interview one of the three students identified as having witnessed the incident in question. That student, Michele Drum, told her parents and Mrs. Lippmann that she had seen Mr. Howard kick Scott twice. Michelle's parents even wrote to the superintendent with this information. Yet, officials chose not to interview Michelle. Further, officials mistakenly interviewed a student who was not even on the bus, apparently confusing him with a different student with the same last name who had been identified by petitioners. The single student who they did interview stated that he was unsure whether he was on the bus that day. On these facts, the district decided Scott's account could not be corroborated. Given the totality of the circumstances, this seems a premature conclusion.

Moreover, the manner in which officials interviewed Scott was not conducive to a candid conversation. Scott, a ten year old, had accused his bus driver of assaulting him. Several parents had written to the district advising that their children were afraid of Mr. Howard. Yet, under these circumstances the principal chose to speak with Scott for the first time about the incident in the presence of his alleged assailant and in the principal's office. Most fourth graders would be intimidated in such a setting – especially when the bus driver is permitted to address the child and tell him he is owed an apology.

Given the paucity of information revealed by respondent's limited investigation, this case comes down to Mr. Howard's word against Scott's. The district appears to have given Mr. Howard the benefit of the doubt because he has no prior disciplinary record. However, neither does Scott. The district cannot suggest a motive for Scott to make up such a story, nor can officials explain why the parents of other children would write to express similar concerns. These facts, and Mr. Howard's inappropriate treatment of Scott in calling him a liar and asking him for an apology, suggest that the district should have investigated more thoroughly.

I can make no judgment based upon the record before me as to Mr. Howard's guilt or innocence. However, we teach our children at home and in school to say "no" if someone tries to hurt them and encourage them to tell an adult. The adults must then do their best to protect them. I urge district officials to review very thoroughly allegations of physical abuse in the future.

THE APPEAL IS DISMISSED.

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