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Decision No. 15,855

Appeal of ANONYMOUS from action of the Board of Education of the Mamaroneck Union Free School District and Superintendent Paul R. Fried regarding denial of access to district property.

Decision No. 15,855

(December 12, 2008)

Brad A. Stuhler, Esq., attorney for petitioner

Ingerman Smith, LLP, attorneys for respondents, Gus Mountanos and Emily J. Lucas, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Mamaroneck Union Free School District (“board”) and Superintendent Paul R. Fried (collectively “respondents”) to ban her from district property.  The appeal must be sustained.

Petitioner is employed by the district as a tenured guidance counselor.  Petitioner’s two children attend respondents’ high school and are members of the school’s track and lacrosse teams.

On or about December 11, 2007, the superintendent preferred 20 charges of misconduct against petitioner pursuant to Education Law §3020-a.  Pending the outcome of the disciplinary proceeding against her, petitioner was suspended with pay and was informed that she would be allowed on district property only with the superintendent’s prior permission.  During her suspension, petitioner was allowed to contact relevant district staff via telephone and email regarding her children’s education.  Petitioner admits that such restrictions “were reasonable and in the discretion of respondent” and claims that she “abided” by them “without a problem or incident.”[1]

On March 17, 2008, petitioner’s husband was arrested and charged with second degree aggravated harassment for allegedly making threatening telephone calls to a district employee who works with petitioner and has been called as a witness in the disciplinary proceedings against her.  The record indicates that the caller made such statements as “Die.  Ha Ha Ha,” “I’m coming after you” and “I’m going to watch you die.”  The record also indicates that the calls were made to the employee’s cell phone and made reference to her maiden name – information that was known to petitioner.  Based on this charge, a temporary order of protection was issued against petitioner’s husband on March 17, 2008.[2] 

By letter dated March 20, 2008, the district’s attorney informed petitioner’s attorney that, “due to recent events in connection with this case, [petitioner] will no longer be permitted to be on school district property for any reason at this time.”  This appeal ensued.  Petitioner’s request for interim relief was denied on April 17, 2008.

Petitioner argues that respondents’ decision to ban her from district property “due to the acts of a third party” is arbitrary and capricious and bears no nexus to the disciplinary charges pending against her.  She seeks a declaration that the permanent ban is “null and void” and reinstatement of the limited restrictions on her access to district property that were in effect until March 20, 2008.

Respondents contend that, based on the serious nature of the disciplinary charges against petitioner and the threatening phone calls allegedly made by her husband, the “temporary ban” on petitioner’s access to district property is necessary until respondents are “able to [e]nsure the safety of [district] employees.”  Respondents maintain that the ban is “reasonable and limited in scope” and that they will “re-examine the situation” if petitioner “presents an affidavit stating that she had absolutely no knowledge or involvement in the threatening calls ....”  Specifically, respondents request that petitioner “affirm that she did not provide the phone numbers or encourage her husband in any way in making these threats, as well as having no knowledge that these calls were being made by her husband.”[3]

Pursuant to Education Law §1709(2) and (33), a board of education has the authority to establish rules and regulations concerning order and discipline in its schools (Appeal of M.S., 47 Ed Dept Rep __, Decision No. 15,733; Appeal of Oliver, 42 id. 217, Decision No. 14,829; Appeal of Havens, 42 id. 13, Decision No. 14,758).  Petitioner correctly notes that, while courts have upheld restrictions on the access of district employees and school board members to school grounds, such restrictions have been “partial” and “limited in nature” (seePearlman v. Cooperstown Cent. School Dist., 2003 WL 23723827 [NDNY]; Silano v. Sag Harbor Union Free School Dist. Bd. of Educ., 42 F3d 719, certden 515 US 1160).

Respondents maintain that the ban on petitioner’s access to district property is “narrowly limited in scope” and therefore within their discretion.   In support of this position, respondents cite Appeal of Anonymous (44 Ed Dept Rep 260, Decision No. 15,167).  However, respondents’ reliance on this case is misplaced.  In Appeal of Anonymous, the petitioner was a tenured physical education teacher who was placed on administrative leave after charges were filed against her pursuant to Education Law §3020-a.  The Commissioner found that the district’s limited restriction on the teacher’s access to school district property was “reasonably and narrowly limited in scope,” since it extended only to track meets, with the single purpose of restricting the teacher from contacting student athletes with whom she had previously been closely associated.  The Commissioner also noted that “the ability of an employer to restrict activities of a paid employee outside working hours is not unlimited (cf., Labor Law §201-d).”

Unlike Appeal of Anonymous, here respondents have imposed a total ban on petitioner’s access to district property.  Although respondents characterize the ban as “temporary” and “for the time being,” there is no evidence in the record indicating when and under what circumstances such ban would be lifted.  Moreover, the ban imposed by respondents is unlimited in scope, as it prohibits petitioner from entering district property for any reason (for example, to vote in an election or to attend parent/teacher conferences for her children), regardless of whether her presence at any particular activity or event bears any relation to the disciplinary charges pending against her.  As a result, I cannot conclude that the ban imposed on petitioner is “reasonably and narrowly limited in scope.”

Respondents also contend that the ban is “necessary” for the protection of the district’s staff and students based on the serious nature of the disciplinary charges against petitioner and their possible relation to the criminal charges against her husband.  In support of this argument, respondents cite Cina v. Waters (9 AD3d 550).  In that case, a parent was banned from school property after entering a school building for a parent-teacher conference with a gun in her possession.  The Ulster County Supreme Court upheld the ban, and the Third Department, while dismissing the parent’s appeal as moot, noted in dicta that “the record fully supports the Supreme Court’s determination.”  While I recognize that, in the instant case, the disciplinary charges filed against petitioner and the criminal charges filed against her husband are serious, the record contains no evidence that petitioner was involved in, had knowledge of and/or encouraged her husband’s conduct.  Unlike the parent in Cina v. Waters, who entered a school building carrying a .22 caliber pistol, there is no evidence in the record before me that petitioner poses a danger to respondents’ students, staff or property.  Therefore, I find that the record in this case does not support respondents’ imposition of a total ban on petitioner’s access to district property.

Nothing herein should be interpreted as tolerating inappropriate behavior on school grounds and/or the harassment of school students and/or employees.  When such conduct occurs, school district officials are encouraged to seek the assistance of law enforcement and/or the courts where necessary to ensure the safety of students, staff and/or school property.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the ban on petitioner’s access to district property imposed by respondents on March 20, 2008 be annulled.

IT IS FURTHER ORDERED that, pending the resolution of the disciplinary charges against petitioner, respondents may continue to impose reasonable restrictions on petitioner’s access to district property in accordance with this decision.

END OF FILE

[1]The record indicates that by letters dated January 11 and February 27, 2008, petitioner “indicate[d]” and “notif[ied]” the superintendent that she would “be on District property” for certain events.  While the superintendent granted petitioner permission to attend these events, by letters dated January 16 and March 11, 2008, petitioner was reminded that she was not allowed on district property without first requesting and obtaining the superintendent’s permission.

[2]On or about April 1, 2008, a second temporary order of protection was issued against petitioner’s husband in connection with threatening telephone calls allegedly made to respondents’ middle school principal, also a witness for the district in the §3020-a proceedings against petitioner.

[3]Petitioner argues that she has provided such a statement in her verified petition in which she states that she “was unaware of the alleged actions of her husband until he was arrested.”