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Decision No. 15,572

Appeal of THOMAS L. JEFFERSON from action of the Board of Education of the City School District of the City of Poughkeepsie regarding administrative appointments.

Decision No. 15,572

(April 17, 2007)

Jerold S. Slate, Esq., attorney for petitioner

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Beth L. Sims, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the appointment of two administrators by the Board of Education of the City School District of the City of Poughkeepsie (“respondent”) on August 23, 2006.  The appeal must be dismissed.
Although it is not clear from the record, it appears that petitioner was at all relevant times an employee of respondent.  It further appears that respondent’s superintendent, Laval S. Wilson, shortly after his appointment effective July 1, 2006, decided to fill certain vacant administrative positions, including Assistant Superintendent for Human Relations and middle school principal.  At its meeting on August 23, 2006, respondent voted to appoint Jose Carrion to the position of Assistant Superintendent for Human Relations, and to appoint Anthony Lupoli to a position as middle school principal, as recommended by the superintendent.
Petitioner commenced this appeal on September 22, 2006.  The petition alleges only that respondent and its superintendent violated board policy 9240 (entitled “Recruiting and Hiring”) and board regulation 9240-R (also entitled “Recruiting and Hiring”), which is intended to implement the policy by giving “broad direction to those engaged in the process by which professional staff are brought into the district.”
Petitioner requests that I order a “fine suitable or compatible employment in the district for those who did not have their resume [sic] considered;” a “commitment and promise” that the superintendent and respondent “will began [sic] to abide by board policies;” and “[c]ompensation to amend [one year of salary][sic].”
Respondent generally denies that it or its superintendent violated either the policy or the rule in question, and states that the appointments made on August 23, 2006, were in all respects proper.  Respondent also asserts a number of affirmative defenses including a claim that the petition fails to establish facts demonstrating a clear right to relief; that petitioner has failed to name and serve necessary parties, specifically the superintendent and the two appointees; and that the appeal is untimely with respect to any actions or omissions that occurred more than 30 days prior to commencement of the appeal.
     Petitioner filed a reply consisting of his own affidavit and the affidavits of two persons who applied for one or more of the positions filled on August 23, 2006.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
     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 Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).
By reference to various sections of respondent’s policy and rule, petitioner suggests that respondent and its superintendent, particularly with respect to the position of Assistant Superintendent for Human Relations, failed to, among other things, post job opening notices properly, advertise the positions in newspapers and other media, acknowledge the receipt of applications, form an interview committee, and consider all applications received.  As a result, petitioner suggests that respondent and its superintendent did not act in accordance with respondent’s basic recruiting and hiring policy, which provides in part:
It is the policy of the Board to afford employment opportunities to all persons regardless of race, sex, sexual orientation, color, national origin, religion, age, disability or marital status as defined in the New York State Human Rights Law.  The district will implement a recruitment program intended to solicit candidates who reflect the diverse and multicultural nature of our student population for all positions.
     Nowhere, in the petition, reply, or memorandum of law, does petitioner claim, much less prove, that he ever applied for, or expressed an interest in, either position filled by the board on August 23, 2006.  Nor does he claim that he would have applied for either position if the positions had been properly posted and advertised, as he claims they should have been.  As a result, petitioner has established neither a cognizable injury to himself nor a right to relief.  While petitioner presents the affidavits of two persons who claim they did apply for one or both of the positions, he cannot use their alleged injuries as a basis for his own appeal (seeAppeal of Peto, 31 Ed Dept Rep 390, Decision No. 12,677; Appeal of Caunitz, et al., 30 id. 396, Decision No. 12,510).  I will not render what would for all practical purposes be an advisory opinion (seeAppeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of Peto, 31 id. 390, Decision No. 12,677).
In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.
END OF FILE