Appeal of PETER and FRANCESCA GONZALEZ, on behalf of their daughter NIKKI, from action of the Board of Education of the Middleburgh Central School District, Thomas S. Gould, Interim Superintendent, Lori Petrosino, Principal, Gregg Johns, Athletic Director and Robert Farrell, Varsity Basketball Coach, regarding alleged discrimination.

Decision No. 15,900

(March 25, 2009)

Girvin & Ferlazzo, P.C., attorneys for respondents, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal various actions of and alleged discrimination by the Board of Education of the Middleburgh Central School District (“board”), the interim superintendent, the high school principal, the athletic director and the girls’ varsity basketball coach (collectively “respondents”)  in connection with their daughter’s involvement with the girls’ basketball program at Middleburgh.  The appeal must be dismissed.

Between October 5 and November 9, 2007, petitioners had various communications and meetings with respondents objecting to the appointment of respondent Farrell as head coach of the girls’ varsity basketball team and the alleged policy that team practices would be closed to parents.  This appeal ensued.

Petitioners allege that they and their daughter were denied equal protection under the law, that they were subject to discrimination in violation of Title VI of the Civil Rights Act of 1964 and that their right to free speech under the First Amendment of the United States Constitution was violated.  Petitioners also allege that the board violated Title IX of the Education Amendments of 1972 and §135 of the Commissioner’s regulations.  In addition, they claim that the coach illegally taped a meeting with them and, in the past, caused their daughter emotional distress.  Petitioners allege that the principal and the athletic director, individually, violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Constitution by permitting their daughter to be emotionally abused.  Petitioners request that those guilty of discrimination be permanently suspended and disciplined.

Respondents allege that petitioners fail to state a claim upon which relief may be granted, that I lack jurisdiction over the appeal, that the petition is untimely and that petitioners failed to join necessary parties.

Initially, I must address petitioners’ 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 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 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.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Although petitioners allege wrongdoing by individual board members and seek relief against them, they were not named as respondents nor were they served in accordance with §275.8(a) of the Commissioner’s regulations.  Therefore, to the extent that petitioners seek removal or discipline of individual board members, the appeal must be dismissed for failure to join them as necessary parties.

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).  The interim superintendent is no longer employed as such by respondent.  Therefore, petitioners’ request for his removal must be dismissed as moot.

To the extent petitioners seek permanent suspension of the coach, the principal and the athletic director, their request is tantamount to a request for removal.  While Education Law §306 provides the authority for removal of school officers, the principal, athletic director and coach are district employees, not officers subject to removal under §306 (seeAppeal of Davis, 37 Ed Dept Rep 17, Decision No. 13, 793; Appeal of Federico, 35 id. 269, Decision No. 13,538).  Therefore, the relief requested by petitioners is not within my authority and petitioners’ claims in this regard must be dismissed.

Furthermore, an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  To the extent that petitioners’ allegations arise from the appointment of Farrell as girls’ varsity basketball coach, the appeal must be dismissed as untimely.  The record reflects that Farrell was appointed on October 24, 2007.  The appeal was not commenced until November 29, 2007, more than 30 days later.  Petitioners request that I excuse their delay because they did not read about Farrell’s appointment in the newspaper until November 2, 2007 and were not “officially notified” of the appointment until November 5, 2007.  However, Farrell was appointed at a public board meeting on October 24, 2007.  Therefore, I do not find petitioners’ explanation reasonable cause to excuse the delay.

To the extent petitioners seek disciplinary action against the board or any individual respondents, the appeal must be dismissed.  It is the board of education which has authority to take disciplinary action against a school district employee.  Moreover, a board of education has broad discretion to determine whether disciplinary action against an employee is warranted as long as it has a reasonable basis to support its conclusion (Appeal of Davis, 37 Ed Dept Rep 17, Decision No. 13,793; Appeal of Rivenburg, 35 id. 27, Decision No. 13,451).  Finally, I do not have the authority to censure or reprimand a board of education (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).

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

THE APPEAL IS DISMISSED.

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