Appeal of PETER and FRANCESCA GONZALEZ, on behalf of their daughter NIKKI, from actions of Samuel A. Shevat, Superintendent, William D. Wolfanger, Director of Pupil and Personnel Services, and Michael A. West, School District Attorney, for the Cobleskill-Richmondville Central School District, and application for their removal.

Appeal of PETER and FRANCESCA GONZALEZ, on behalf of their daughter NIKKI, from action of the Board of Education of the Cobleskill-Richmondville Central School District regarding the use of school facilities.

Decision No. 15,898

(March 25, 2009)

Parshall & West, attorneys for respondents, Michael A. West, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioners challenge various actions of Samuel A. Shevat, Superintendent of the Cobleskill-Richmondville Central School District (“district”), William D. Wolfanger, the district’s Director of Pupil Personnel Services, and Michael A. West, the district’s attorney (collectively referred to as “the individual respondents”) and the Board of Education of the Cobleskill-Richmondville Central School District (“board”).  Petitioners also seek the removal of the individual respondents.  Because the appeals and application raise similar claims and issues of law, they are consolidated for decision.  The appeals must be dismissed and the application for removal must be denied.

From September 2002 through December 2004, petitioners and their daughter, Nikki, resided in Richmondville and Nikki attended school in the district.  In March 2005, respondent Wolfanger (“Wolfanger”) requested information about petitioners’ residency.  Thereafter, Mr. Gonzalez advised Wolfanger that he resided in Cobleskill, within the district, and that he maintained a secondary/business address in Schoharie, outside the district.  Mr. Gonzalez submitted a copy of his driver’s license with a handwritten address change from the Schoharie address to the Cobleskill address and a letter indicating that Mr. Gonzalez rented a room in Cobleskill.  In response to a request for additional proof of residency, Mr. Gonzalez provided a letter from the Schoharie County Clerk’s Office indicating that he resided in Cobleskill and that a license reflecting this address would be forthcoming from the Department of Motor Vehicles.  By Notice dated August 30, 2005, respondent Shevat notified petitioners of his determination that Nikki was not a district resident and therefore was not entitled to attend the district’s schools.

Also in February 2005, Mr. Gonzalez filed a complaint with the board against the Amateur Athletic Union Schoharie Valley Nitros (“the Nitros”) and its coach alleging that the Nitros engaged in discriminatory practices while using school facilities, specifically with respect to their selection practices.  Shevat informed Mr. Gonzalez that the board would take no position in the matter because it involved a non-school sponsored activity and therefore was not a school-related matter.  In May 2005, Mr. Gonzalez submitted a “Request to Use Buildings and Grounds” on behalf of the Cobleskill D-1 Basketball League.  On the application, Mr. Gonzalez noted, “Like [the Nitros], Cobleskill D-1 intends to use the facilities exclusive [sic] contrary to rule 1500.[1] Further, contrary to rule 1500 and as Schoharie Valley Girls Nitros, it intends to raise proceeds for their exclusive  basketball club organization within the schoolhouse.”  On May 23, 2005, the board approved Mr. Gonzalez’s request to use district facilities.  Thereafter, petitioners commenced the first appeal and application for removal of the individual respondents.

In January 2006, petitioners renewed their complaints about the Nitros’ use of district facilities and requested a copy of the authorization for such use.  The clerk of the board indicated that the Nitros’ request had not yet been acted upon by the board and therefore, no letter was available.  Thereafter, petitioners complained that the Nitros were practicing on district property without insurance and formal approval from the board.  Petitioners’ second appeal ensued.

With respect to the individual respondents, petitioners allege that Shevat acted wilfully, arbitrarily and capriciously when he denied them due process in determining that Nikki was not a district resident, permitted the Nitros to use school premises in 2004 and 2005, used discriminatory practices in violation of Education Law §3202(1) and approved Mr. Gonzalez’s request to use district facilities in violation of district policy.  Petitioners contend that Wolfanger violated their right to privacy and allege that West violated the Lawyers Code of Professional Responsibility, was unethical and unprofessional in dealing with them, promoted discriminatory practices and advised Shevat to deny petitioners’ due process.

Petitioners request the removal of Shevat, West and Wolfanger, and ask that the petition requesting their removal be included in their personnel files and that they each receive a disciplinary warning.  Petitioners also request that the residency issues raised herein be remanded to the district.

With respect to the board, petitioners allege that it engaged in discriminatory practices, allowed the illegal use of school facilities, and allowed individuals to trespass on school property without approval and insurance.  Petitioners request that I order the board to end its discriminatory practices regarding the use of facilities and that I discipline those responsible for such practices.

Respondents allege that petitioners have failed to state a cause of action and that the appeal and application are untimely, not ripe for review and/or moot.  Respondents further contend that petitioners lack standing because they are not district residents.  Respondents also contend that the Commissioner lacks jurisdiction over alleged violations of the Lawyers Code of Professional Responsibility or Title IX.  With regard to the merits, respondents maintain that they did not violate petitioners’ due process rights and that no discrimination or invasion of privacy occurred.  Respondents contend that the school district has no jurisdiction over the Nitros and that there was no violation of Education Law §414 or board policy.  Finally, respondents maintain that petitioners have failed to establish sufficient cause to warrant removal or censure of the individual respondents.

Initially, I must address several procedural issues.  Petitioners object to respondents’ answer in the first appeal, contending that it fails to comply with §275.12 of the Commissioner’s regulations in that it does not reference the specific numbered paragraphs in the petition.  Although the answer does not specifically mention the petition’s numbered paragraphs, it contains denials to each specific claim, and includes a number of factual assertions and affirmative defenses as required by §275.12.  Accordingly, in the absence of any prejudice, I have considered the answer.

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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed petitioners’ replies, 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.

Additional affidavits, exhibits and other supporting papers may only be submitted with the permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  Therefore, I have not considered petitioners’ correspondence to the board dated January 23 and February 9, 2006, their letter to my Office of Counsel dated February 23, 2006, respondents’ supplemental affirmation dated May 16, 2006, and petitioners’ reply to supplemental affirmation dated May 30, 2006.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  My Office of Counsel has been informed that petitioners’ daughter no longer attends school in the district and Shevat is no longer the superintendent.  Therefore, to the extent that petitioners challenge their daughter’s residency determination and request removal of Shevat, the appeal must be dismissed as moot.

Turning to petitioners’ request for removal of Wolfanger and West, neither is a school officer subject to removal under Education Law §306 (seeAppeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Berman, 46 id. 64, Decision No. 15,442).  Accordingly, petitioners’ application for the removal of Wolfanger and West must be denied.

In addition, I lack the authority to censure or reprimand a board of education or district staff (Appeal of Angrisani and Hamilton, 41 Ed Dept Rep 6, Decision No. 14,593; Appeal of D.H., 41 id. 142, Decision No. 14,640).  Accordingly, petitioners’ request for this relief must also be denied.

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

I find no merit to petitioners’ claim that respondents engaged in discrimination and/or denied equal access to certain individuals.  The gravamen of petitioners’ claim is that individuals were discriminated against and denied equal access because the Nitros select players for its club based on the prior year’s participation rather than performance at tryouts.  Petitioners do not state or establish that this practice results in discrimination based on age, color, creed, sex, religion or any other protected basis.  The burden of substantiating a claim of discrimination is clearly on petitioners (Appeal of Fink, 33 Ed Dept Rep 340, Decision No. 13,069; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879) and petitioners have failed to meet this burden.

Nor do I find merit to petitioners’ claim that the individual respondents and the board violated Education Law §414 and Policy No. 1500 by permitting the Nitros to use district facilities.  Education Law §414(1) provides in pertinent part:

The trustees or board of education of each district may ... permit the use of the schoolhouse and rooms therein ... when not in use for school purpose ....

c) For holding social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such meetings, entertainment and uses shall be non-exclusive and shall be open to the general public (emphasis added).

Likewise, Policy No. 1500 prohibits the use of school premises for the benefit of an exclusive society or organization.  Petitioners present no evidence to support their claim that the Nitros excluded individuals from participation.  The board, on the other hand, submits an email from the Nitros’ coach who states that out of the 45 prospective players who tried out for the club, all were placed on a team and some teams were not able to fill their rosters.

The record, however, shows that the board permitted the Nitros to use district facilities for one day without formal board approval.  However, I find this delay to be deminimus and inconsequential.

In light of this disposition I need not address the parties’ remaining contentions.

THE APPLICATION IS DENIED AND THE APPEALS ARE DISMISSED.

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