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Decision No. 15,584

Application of V.M., on behalf of R.M., for the removal of Grenardo L. Avellino as Principal of the Westhill Central High School, and appeal from actions of the Board of Education of the Westhill Central School District regarding student discipline. 

Decision No. 15,584

(May 11, 2007)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Grenardo L. Avellino (“Avellino”) as principal of the Westhill Central High School, and requests relief from the Board of Education of the Westhill Central School District (“the board”) related thereto.  The application must be denied and the appeal must be dismissed.

On December 20, 2006, petitioner’s son, R.M., a student at the Westhill Central High School, received a five-day out-of-school suspension for being in possession of brownies containing marijuana.

Petitioner alleges that Avellino violated the district’s code of conduct (“code”) by failing to contact him prior to searching R.M.’s person and property with police officials present.  Petitioner seeks the removal of Avellino pursuant to Education Law §306 and demands that the Commissioner investigate all previously alleged violations of the code by him.  Petitioner also demands that the board acknowledge that R.M.’s rights were violated, provide a written acknowledgement to district residents of the alleged violation, commence a public meeting to address the alleged violation and amend its code to include the appeals process provided for in Education Law §310.

Respondents argue that the petition should be dismissed because Avellino is an employee, not a school officer subject to removal under Education Law §306.

Petitioner submits a reply which contains new allegations and exhibits.  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.

To the extent petitioner seeks the removal of Avellino pursuant to Education Law §306, the application must be denied.  Education Law §306 authorizes the Commissioner to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer. Education Law §2(13) defines “school officer” by specifically identifying a number of positions and including any “other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.”  Based on the record before me, I find that Avellino is a district employee and not a school officer subject to removal under §306 (Appeal of a Student with a Disability, 36 Ed Dept Rep 181, Decision No. 13,694).

With regard to petitioner’s demand that the Commissioner investigate all previous alleged violations of the code by Avellino, the appeal must be dismissed.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).

It appears that petitioner was advised of his right to appeal to the Commissioner in the principal’s suspension letter.  Petitioner has failed to establish any legal basis for the requested amendment of the code.

In light of this disposition, I need not address petitioner’s remaining claims.

THE APPLICATION IS DENIED AND THE APPEAL IS DISMISSED.

END OF FILE