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Decision No. 15,958

Appeal of P.S. from action of the Board of Education of the City School District of the City of Tonawanda regarding termination of employment.

Decision No. 15,958

(July 29, 2009)

Bouvier Partnership, LLP, attorneys for respondent, Chris G. Trapp, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the termination of her employment by the Board of Education of the City School District of the City of Tonawanda (“respondent” or “board”).  The appeal must be dismissed.

Petitioner served as clerk of the board beginning in December 1999, and also served as Director of Continuing/Community Education (“Director”) beginning in December 2000.  During the fall of 2008, it appears that the relationship between petitioner, the board, and other employees of the district seriously deteriorated.

On October 8, 2008, a harassment complaint was filed by some district employees against petitioner.  The matter was investigated by the district’s Harassment Officer, who criticized certain behaviors of petitioner but found that they did not rise to the level of harassment, and dismissed the complaint.  Almost simultaneously, petitioner filed a complaint against the Harassment Officer for “creating a hostile work environment detrimental to Continuing Education.”

On November 3, 2008, petitioner met with the president and vice president of the board.  The parties dispute the nature of this conversation.  However, it appears that thereafter the board president prepared a document outlining certain “issues” and “expectations” with respect to petitioner’s activities, both in her capacity as clerk and as Director.  On November 18, following a meeting of the board, the board president attempted to present this document to petitioner, who allegedly refused to accept it.  According to the affidavit of the president, petitioner not only refused to accept it, but threw it back at her and left the building.

Shortly after that meeting, petitioner generated a series of complaints to the Equal Employment Opportunity Commission, the State Education Department, and the National Counsel on Disability, and filed a series of Freedom of Information Law (“FOIL”) requests with the district, which she claims were not properly answered. 

Matters came to a head at a special board meeting on December 9, 2008, when the board unanimously voted to abolish the Director position and terminate petitioner from her position as clerk of the board.  This appeal ensued.

Petitioner does not specifically allege that either her termination as clerk or the abolition of her position as Director was unlawful.  She objects to certain language contained in the board resolution that terminated her employment as clerk, referring to “certain issues” that have arisen, and stating that petitioner “refused to engage in any discussions and was guilty of gross insubordination . . .” She claims that the wording of the resolution violated Commissioner’s regulation §84.2, and demands compensation for lost wages and defamation.

Respondent generally denies any wrongdoing, and argues that all of its actions were justified by petitioner’s conduct.  Respondent also raises a number of affirmative defenses, including lack of jurisdiction and untimeliness with respect to certain matters.

I must first address the procedural issues relating to petitioner’s reply and an additional submission.  Respondent contends that petitioner’s reply is untimely.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Peterson, 46 Ed Dept Rep 558, Decision No. 15,595; Appeal of E.B. and J.B., 46 id. 338, Decision No. 15,526).

Respondent’s answer was served by mail on January 28, 2009.  Pursuant to Commissioner’s regulation §275.14(a), petitioner’s reply should have been served no later than February 10, 2009.  The record contains a reply dated January 27, 2009, but without an affidavit of service.  Although dated January 27, 2009, the copy filed with my Office of Counsel is postmarked March 5, 2009, and was received March 9, 2009.  Respondent’s counsel states that he first received the reply electronically on Sunday, February 22, 2009.  I therefore conclude that the reply was untimely and I have not considered it.

I have also not considered improper material submitted in an unsworn document from petitioner dated March 11, 2009, and received by my Office of Counsel by facsimile transmission on March 15, 2009.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior 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).

As noted above, petitioner has not specifically alleged that either her termination as clerk or the abolition of her position as Director was unlawful.  The record indicates that her position as clerk was an exempt position, subject to termination at any time by the board.  The record also indicates that her position as Director was abolished, because the duties were absorbed by another position.  Moreover, even if petitioner had successfully argued that these actions had been done unlawfully, she could not recover lost wages in this appeal.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

To the extent that petitioner alleges the board violated §84.2 of the Commissioner’s regulations (8 NYCRR §84.2), her claims must be dismissed.  Section 84.2 governs the procedure pursuant to which a board of education may examine an employee’s personal records, and does not govern the content of a board resolution.  To the extent that she claims the language of the resolution was defamatory, I lack jurisdiction over such a claim.  Any alleged defamation claims petitioner may have against respondent may be raised in a court of competent jurisdiction (Appeal of Federico, 35 Ed Dept Rep 269, Decision No. 13,538). 

Petitioner’s claims regarding her FOIL requests and the board’s executive session on December 9, 2008, must also be dismissed for lack of jurisdiction.  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 (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442; Appeal of Hubbard, 45 id. 451, Decision No. 15,379). 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 L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Hubbard, 45 id. 466, Decision No. 15,383; Appeal of Hubbard, 45 id. 451, Decision No. 15,379). 

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

THE APPEAL IS DISMISSED.

END OF FILE