Appeal of ELIZABETH OLKA from action of the Board of Education of the City School District of the City of Tonawanda regarding a personnel matter.

Decision No. 15,776

(July 9, 2008)

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew Freedman, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner challenges the actions of the Board of Education of the City School District of the City of Tonawanda (“respondent” or “board”) regarding the removal of her name from a substitute teacher list.  The appeal must be dismissed.

By letter dated January 8, 2008, respondent notified petitioner that it removed petitioner’s name from its substitute teacher list for social studies.  This appeal ensued. 

Petitioner alleges that respondent violated the Open Meetings Law by failing to vote on her removal from the substitute list and/or failing to maintain any minutes of the executive session reflecting such vote.  Petitioner further alleges that her removal was unwarranted and requests that she be reinstated with back pay and that respondent formally apologize for its inappropriate behavior in handling her dismissal. Petitioner further requests appropriate sanctions and asks that I direct respondent to implement a sound and fair policy for the treatment of its substitute teachers and to incorporate moral character in their bylaws on employee relations.  Petitioner also challenges respondent’s denial of a FOIL request, wherein she sought a copy of a local math examination. 

Respondent argues that it acted legally, reasonably, rationally and that it did not abuse its discretion when it removed petitioner’s name from the substitute teacher list.  Specifically, respondent contends that petitioner was an employee at will, subject to dismissal without reason and without a due process hearing.  Respondent also claims that respondent failed to exhaust her administrative remedies and that the Commissioner lacks jurisdiction over alleged violations of the Freedom of Information Law or the Open Meetings Law.  Respondent further alleges that petitioner’s request for an investigation into the content of its answer is unfounded. 

Initially, I must address petitioner’s reply.  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.

With regard to respondent’s exhaustion defense, the January 8, 2008 letter notifying petitioner of the superintendent's decision to remove petitioner from the substitute list does not contain any language notifying petitioner of her right to an appeal nor does respondent provide any policy, rule or regulation that requires an appeal to respondent. Therefore, I will not dismiss the appeal for failure to exhaust administrative remedies (seeAppeal of Barbara D. and James D., Jr., 34 Ed Dept Rep 118, Decision No. 13,252).

Turning to the merits, a board of education has the unfettered right to terminate the employment of an untenured substitute teacher or probationary teacher for any reason unless the employee establishes that she was terminated for a constitutionally impermissible reason, or in violation of a statutory or contractual proscription (James v. Bd. of Educ., 37 NY2d 891; seeAppeal of Martin, 25 Ed Dept Rep 21, Decision No. 11,484; Appeal of Wynne, 40 id. 521, Decision No. 14,544).  Petitioner has neither alleged nor established that respondent terminated her employment for a constitutionally impermissible reason or in violation of a statutory proscription.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).    Petitioner has failed to meet her burden in this appeal.

Petitioner further claims that although respondent may not have been required to act to terminate her, it did act and did so in an unauthorized manner.  Specifically, petitioner argues that there is no record of a public vote or minutes of a vote in executive session.  Such matters are governed by the Open Meetings Law.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785). 

Likewise, I have no jurisdiction to address the FOIL allegations raised in this appeal.  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Milazzo, 43 Ed Dept Rep 294, Decision No. 14,999; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660).  

To the extent petitioner requests that the Commissioner investigate respondent’s actions, 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).

I have considered the parties’ remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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