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Decision No. 14,730

Appeal of HEATHER A. DECASTRO from action of the Board of Education of the Lewiston-Porter Central School District and Margaret Laurie, Edward Lilly and Louis Palmeri, members of the Board of Education, regarding board actions.

 

Decision No. 14,730

(May 31, 2002)

Hodgson Russ LLP, attorneys for respondents, Karl W. Kristoff and Amy J. Vigneron, Esqs., of counsel

 

MILLS, Commissioner.--Petitioner appeals the action of the Board of Education of the Lewiston-Porter Central School District and members Margaret Laurie, Edward Lilly and Louis Palmeri ("respondents") rescinding the grant of tenure to two administrators. The appeal must be dismissed.

On June 19, 2001, a majority of the board voted to grant tenure to Margaret W. Beach in the tenure area of Elementary Principal, effective September 1, 2001. Ms. Beach had completed one year of her probationary period that had commenced on July 1, 2000. The board also voted to grant tenure to LuAnn E. Ostanski in the tenure area of Dean of Students/Director of Interscholastic Athletics, effective September 1, 2001. Ms. Ostanski had completed two years of her probationary period that had commenced on August 25, 1999. Respondents Laurie and Lilly were members of the board on June 19, 2001.

On May 15, 2001, respondent Palmeri was elected to the board. On July 17, 2001, a majority of the newly constituted board, which now included respondent Palmeri in addition to respondents Laurie and Lilly, voted to rescind the grants of tenure to Ms. Beach and Ms. Ostanski because neither had completed a three-year probationary period pursuant to Education Law "3012.

Petitioner asserts that respondents willfully violated the Education Law, their oaths of office, their duties as trustees and the rights of Ms. Beach and Ms. Ostanksi when they voted to rescind tenure. Petitioner contends that respondent Palmeri voted to rescind Ms. Ostanski"s tenure because she had previously disciplined his son. She also claims that respondents willfully violated the terms and conditions of the superintendent"s employment contract. Petitioner seeks the removal of respondents Lilly, Laurie and Palmeri, and requests a full review of the board"s actions.

Respondents assert that petitioner lacks standing and that the appeal is untimely. Respondents also assert that they acted properly in requiring a three-year probationary period.

I must first address several procedural issues. Pursuant to "276.4 of the Commissioner"s Regulations, petitioner was required to serve her memorandum of law within 20 days after service of respondent"s answer. Respondents served their answer on November 13, 2001. Petitioner, however, did not submit her memorandum until January 9, 2002, more than 50 days later. While the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR "276.4[a]), petitioner has shown neither in this appeal. Additionally, respondents assert that petitioner"s memorandum of law raises new facts and arguments. A memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of D.C., 41 Ed Dept Rep ___, Decision No. 14,661; Appeal of Muench, 38 id. 649, Decision No. 14,110; Appeal of McDougall, et al., 37 id. 611, Decision No. 13,941). Therefore, I have not considered petitioner"s memorandum of law.

Respondents also object to petitioner"s late submission of documents on March 26, 2002. Although petitioner purports to submit the documents pursuant to "276.5 of the Commissioner"s Regulations, she did not seek prior permission of the Commissioner to do so. Therefore, I decline to accept petitioner"s submission. Even if I were to accept the submission, petitioner"s documents consist mostly of newspaper articles. It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Wilson, 41 Ed Dept Rep ___, Decision No. 14,663; Appeal of Toftegaard, 25 id. 159, Decision No. 11,532).

Petitioner also lacks standing to bring this appeal. Pursuant to Education Law "310, an individual may not maintain an appeal unless aggrieved in the sense that she has suffered personal damage or injury to her civil, personal or property rights. Only persons who are directly affected by the action being appealed have standing (Appeal of Allen and Wong, 40 Ed Dept Rep ___, Decision No. 14,501; Appeal of Murphy, 39 id. 562, Decision No. 14,311; Appeal of Sullivan, 33 id. 566, Decision No. 13,152). Status as a resident of a school district or as a parent of a student does not, in and of itself, confer standing to challenge a board of education"s actions concerning its employees (Appeal of Craft and Dworkin, 36 Ed Dept Rep 314, Decision No. 13,734; Appeal of Siracusa and Montana, 33 id. 563, Decision No. 13,151). Accordingly, petitioner does not have standing to assert the alleged tenure rights of Ms. Beach and Ms. Ostanski.

 

THE APPEAL IS DISMISSED.

END OF FILE