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Decision No. 14,595

Appeal of GARY PHILIPS from action of the Board of Education of the Liverpool Central School District and Superintendent John Cataldo regarding alleged misconduct.

Decision No. 14,595

(July 9, 2001)

O'Hara and O'Connell, attorneys for respondents, Dennis G. O'Hara, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Liverpool Central School District ("respondent") to retract certain statements made by respondent's attorney at its January 8, 2001 meeting. The appeal must be dismissed.

Petitioner has been a tenured mathematics teacher in the district for over thirty years. In June 2000, petitioner submitted his resignation, effective June 30, 2001, as part of a settlement agreement to terminate charges brought against him by the district pursuant to Education Law "3020-a. An integral part of the settlement agreement described certain conditions under which petitioner could return to the classroom and/or coaching for the 2000-2001 school year. Between September 2000 and January 2001, petitioner and district officials conducted extensive negotiations over the terms and conditions of petitioner's return to teaching. Unresolved terms, including potential limited access to certain school activities, were to be presented in executive session at respondent's January 8, 2000 meeting.

Sandra Philips, petitioner's wife, is coincidentally a member of respondent board, having been reelected in May 2000 after previously serving from 1986-1996. At the time of her reelection, petitioner had a lawsuit pending against the district in addition to the outstanding "3020-a charges. Consequently, Mrs. Philips agreed to voluntarily excuse herself from respondent's executive sessions when discussions about her husband were to occur, although the parties disagree about how Mrs. Philips and respondent arrived at this understanding.

The minutes of the January 8, 2001 meeting reflect that respondent entered into executive session at 10:45 p.m. According to respondent, Mrs. Philips insisted on remaining for the discussion of the potential settlement of petitioner's situation, instead of excusing herself as she had in the past, and a discussion ensued regarding the ramifications of her potential conflict of interest. Respondent asserts that it then reconvened in open session. Thereafter, two board members moved to direct respondent's attorney to seek a determination from the Attorney General or in a declaratory judgment action whether Mrs. Philips is entitled to participate in executive sessions at which the Board and its attorney discuss her husband's claims against the district and/or his employment status.

Mrs. Philips claims she was not aware that respondent had reconvened in open session. Subsequently, when Superintendent Cataldo compared petitioner's situation to that of another teacher whose access to school activities had been limited, Mrs. Philips replied, according to the meeting minutes, "that there is a difference, since her husband had not been removed from a school building in handcuffs." Thereafter, Mr. O'Hara, respondent's attorney, pointed out that "without the superintendent's intervention, Mr. Philips might very well have also been put in handcuffs based on the allegations made against him and if a call was made to . . . the District Attorney's office." The minutes also reflect that "Mrs. Philips acknowledged that Mr. Philips might also have been removed in handcuffs had it not been for this intervention, and said that they appreciated this fact."

On January 22, 2001, respondent, including Mrs. Philips, voted to approve the minutes of the January 8 meeting. Following the January 22 meeting, a newspaper story appeared relating to the statements from the January 8 meeting. Petitioner claims that discussions on motions made in open session following executive sessions almost never occur. He asserts therefore that those statements and their public dissemination were a deliberate attempt to defame him. He also claims that those public statements violated the confidentiality of the disciplinary charges pending against him pursuant to Education Law "3020-a and General Municipal Law "805-a regarding conflicts of interest. Petitioner seeks an official reprimand of respondent and its attorney, removal of certain statements from the minutes of the January 8 meeting, a public apology and removal of Superintendent John Cataldo.

Respondent denies petitioner's allegations and asserts that Education Law "3020-a and General Municipal Law "805-a are inapplicable to any public statements made at the January 8 meeting.

I must first address several procedural issues. Respondent asserts that petitioner's reply contains irrelevant materials, misstatements of fact, and untimely claims, and requests that I accept its sur-reply to counter petitioner's inaccuracies. Petitioner additionally requests that I accept his reply to respondent's sur-reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress allegations in the petition or add assertions or exhibits that should have been in the petition (Application of Leman and Sluys, 39 Ed Dept Rep 330, Decision No. 14,252; Appeal of Krantz, 38 id. 485, Decision No. 14,077). Petitioner's reply mainly contains additional information regarding the underlying "3020-a charges, Mrs. Philips' understanding as to her agreement to excuse herself, and the history of board meetings regarding executive and open sessions, all of which are irrelevant to his claim of breached confidentiality. Therefore, while I have reviewed petitioner's reply, I have not considered any portion containing new allegations that are not responsive to new material or affirmative defenses in the answer. Similarly, I have not considered those portions of respondent's sur-reply and petitioner's reply thereto relating to the "3020-a charges, settlement negotiations or Mrs. Philips.

In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which he seeks relief (Appeal of Goldin, et al., 39 Ed Dept Rep 14, Decision No. 14, 158; Appeal of Caldwell, et al., 36 id. 296, Decision No. 13,729). The statements of which petitioner complains were initiated by his wife, and appear to have been uttered in her role as his wife, and not as a member of respondent board. The responding statement by Mr. O'Hara, respondent's attorney, is not actionable in the context of a "310 appeal because he is not an officer or district employee (seeMatter of McGinley, 23 Ed Dept Rep 350, Decision No. 11,244). Similarly, General Municipal Law "805-a, which prohibits a board member from discussing confidential information acquired during the course of his or her official duties, is inapplicable to Mr. O'Hara (Applications of Balen, 40 Ed Dept Rep ___, Decision No. 14,474). Accordingly, petitioner has failed to meet his burden of demonstrating a clear legal right to the relief requested.

Petitioner also seeks the removal of Superintendent Cataldo. Education Law "306 authorizes the Commissioner of Education to remove a superintendent for a wilful violation or neglect of duty under the law (Education Law "306[1]; Application of Cobler, 35 Ed Dept Rep 176, Decision No. 13,506; Application of Borges, 34 id. 459, Decision No. 13,382). Petitioner appears to insinuate that the superintendent's statements regarding the reasons for limiting petitioner's access to school events constitute wrongdoing. However, petitioner has failed to allege any specific wrongdoing by Superintendent Cataldo, much less anything constituting a wilful violation of law or neglect of duty. Accordingly, there is no basis for his removal.

Finally, it is well established that I do not have the authority to censure or reprimand a board member (Appeal of Kozak, 39 Ed Dept Rep 278, Decision No. 14,237; Appeal of Kane, 34 id. 116, Decision No. 13,251) or to order respondent to issue an apology (Appeal of Lloyd, 39 Ed Dept Rep 537, Decision No. 14,303).

I have considered petitioner's remaining arguments and find them without merit.

THE APPEAL IS DISMISSED.

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