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Decision No. 16,014

Appeal of DAWN ANDERSON ROSTEN, on behalf of her daughter CASANDRA ANDERSON, from actions of the Board of Education of the Medina Central School District relating to the district’s cell phone policy, and application for the removal of Susan Squires, President of the Board, Christopher Keller, board member, Albie Suozzi, Acting Superintendent, Elaine Wendt, Middle School Principal, Mark Kruzynski, Associate High School Principal and Dawn Lee, registered nurse.

Decision No. 16,014

(February 6, 2010)

Harris Beach PLLC, attorneys for respondents, Alfred L. Streppa, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals various actions of the Board of Education of the Medina Central School District (“board”), relating to the district’s cell phone policy.  Petitioner also seeks the removal of certain board members and administrators and the school nurse (collectively referred to with the board as “respondents”).  The appeal must be dismissed and the application must be denied.

In the 2008-2009 school year, petitioner’s daughter, Casandra, attended eighth grade in the district’s middle school.  Beginning in September 2008, petitioner contacted school administrators and the board president about alleged incidents of safety and student right violations, as well as a proposed cell phone policy.  Petitioner volunteered for the cell phone committee, but was told that the committee had already been established.  The recommendations of the cell phone committee were discussed at an October 14 board meeting and read at the board’s October 20 meeting.  This appeal ensued.  On December 15, 2008, the board passed Policy No. 7412 which prohibited the use of wireless communication devices during or between classes in all of the district’s schools.   

Petitioner alleges that respondents denied her request to discuss numerous alleged violations of students’ rights and the possible adoption of the cell phone guidelines by the middle school, in violation of board policy and Education Law §§1701, 1804 and 1805.  Petitioner also contends that respondents denied her request to serve as a parent representative on the cell phone committee, in violation of board policy, §100.11 of the Commissioner’s regulations and the Open Meetings Law.  Petitioner further alleges that respondents denied her request for a copy of the district’s policy pertaining to §504 of the Rehabilitation Act of 1973 (“504”).  Her petition also includes alleged violations of the Civil Rights Law and regulations; discrimination on the basis of sex and disability; a denial of a request for reasonable accommodations for her daughter; and the denial of petitioner’s request for a copy of the eighth grade curriculum taught to her daughter. 

Petitioner requests the removal of the acting superintendent, the middle school principal, the high school associate principal, the school nurse and two members of the board.  Petitioner also requests that a special election be held following removal.  Petitioner further requests that the cell phone committee be disbanded, that any product of the committee be deemed null and void, that a new committee be established, and that a permanent parent committee be formed.

Respondents counter that the petition fails to contain a clear and concise statement of petitioner’s claims showing that the petitioner is entitled to relief.  Respondents also maintain that the Commissioner lacks jurisdiction over allegations pertaining to violations of the Open Meetings Law, §504 and the American Disabilities Act (“ADA”).  Respondents request that the petition be dismissed against respondent Lee because she was not served with a copy of the petition and board members Squire and Keller because petitioner failed to use proper notice and because the petition is devoid of allegations which would warrant their removal.  Respondents also argue that the Commissioner lacks jurisdiction to terminate respondents Suozzi, Kruzynski, Wendt and Lee.  Finally, respondents contends that petitioner has failed to exhaust her administrative remedies.     

A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself/herself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (seeAppeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  To the extent petitioner makes generalized and unsubstantiated claims of sex and disability discrimination against her daughter, that portion of her petition must be dismissed.  However, petitioner’s remaining allegations were sufficiently clear for respondents to adequately address them in their answer and respondents do not plead any prejudice.  Accordingly, I decline to dismiss the remaining portions of the petition (Appeal of J.Y. and E.Y., 40 Ed Dept Rep 9, Decision No. 14,403).

Petitioner claims that the answer is untimely.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  The date upon which personal service was made upon a respondent shall be excluded in the computation of the 20-day period (8 NYCRR §275.13).  Respondents were served on October 20, 2008 and the answer was served by mail on November 7, 2008.  While petitioner contends that she did not receive the answer until November 12, 2008, service by mail is complete upon deposit of the answer in a post office or official depository under the exclusive care and custody of the United States Postal Services within the state (8 NYCRR 275.8[b]).  Therefore, the answer was timely served within the 20-day period.

Respondents object to 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 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.

Respondents argue that the appeal should be dismissed for failure to exhaust administrative remedies because petitioner did not appeal her complaints to the superintendent and the board.  However, respondents have failed to demonstrate that there is any applicable statute, regulation, or policy requiring petitioner to appeal first to the superintendent and/or the board before exercising her right to initiate an appeal to the Commissioner.  In the absence of any such requirement, I decline to dismiss this appeal for failure to exhaust administrative remedies.

To the extent that petitioner seeks the removal of Susan Squires, the appeal is moot.  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).  By letter dated November 20, 2009, respondents confirmed that Ms. Squires is no longer a member of the board. 

To the extent petitioner seeks the removal of board member Christopher Keller, the appeal must be dismissed for failure to comply with §277.1 of the Commissioner’s regulations.  Section 277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office. In this case, petitioner failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310. A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective, and does not secure jurisdiction over the intended respondent (Application of Barton, 48 Ed Dept Rep 189, Decision No. 15,832; Application of Knapp, 41 id. 41, Decision No. 14,608; Appeal of Khalid, 40 id. 621, Decision No. 14,570).

I must also deny the application as to respondent Lee.  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).  Lee was neither named in the caption nor was she served with a copy of the petition or a notice of petition.  I, therefore, must dismiss the application to remove Lee for failure to join her as a necessary party. 

To the extent petitioner seeks the removal of principal Wendt, associate principal Kruzynksi and then-acting superintendent Suozzi, the application must be denied for lack of jurisdiction.  Education Law §306 authorizes the Commissioner to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officers. Education Law §2(13) defines “school officer” by specifically identifying a number of positions and including any “other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.”  Assistant superintendents, principals, assistant principals, teachers and school nurses are district employees and not school officers subject to removal under §306 (Appeal of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of a Student with a Disability, 36 id. 181, Decision No. 13,694; Application of Eagelfeld, 35 Ed Dept Rep 193, Decision No. 13,696).  I therefore lack jurisdiction to remove respondents Wendt, Kruzynski and Suozzi.[1]

Further, to the extent that petitioner claims that respondents’ actions violated the Open Meetings Law those claims must be dismissed.  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).

Also, to the extent that petitioner alleges violations of the ADA and §504, the appeal must be dismissed for lack of jurisdiction.  An appeal to the Commissioner is not the proper forum in which to raise alleged violations of the ADA (Appeals of a Student Suspected of Having a Disability, 46 Ed Dept Rep. 539, Decision No. 15,588; Appeal of Mogel, 41 id. 127, Decision No. 14,636; Appeal of Cochran et al., 35 id. 555, Decision No. 13,631).  Similarly, enforcement of §504 lies with the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought present to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 108, 110, Decision No. 15,806; Appeal of A Student Suspected of Having a Disability, 43 id. 487, Decision No. 15,061).

Petitioner’s §306 claims against board member Keller must also be dismissed.  The Commissioner of Education has authority to remove a board member or school official, when it is proven to the Commissioner’s satisfaction that the board member or school official has engaged in a wilful violation or neglect of duty under the Education Law or other laws pertaining to the public schools or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Education Law §306; Application of Fu-Yun Tang, 48 Ed Dept Rep 507, 510; Decision No. 15,932; Application of Lilker, 40 id. 704, Decision No. 14,588; Appeal of Gaul, et al., 40 id. 105, Decision No. 14,432).  To be considered wilful, respondents' actions must have been intentional and with a wrongful purpose (id.).  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).  Petitioner has failed to allege any grounds against respondent Keller that would justify his removal.

Petitioner’s allegations relating to the district’s denial of her request to meet and address issues related to students’ rights and the district’s cell phone policy must be dismissed.  While petitioner cites respondents’ actions to be in violation of Board of Education Policy §1110, this section describes how the board was created and the authority of the board.  This policy does not guarantee petitioner any rights and is not applicable to these allegations.  Moreover, the record reveals that petitioner presented her concerns relating to her daughter’s needs and the cell phone policy on several occasions and that the board president responded to her concerns in several emails and notified petitioner of future board meetings where the cell phone policy would be discussed.  The record also reveals that petitioner attended meetings with the school nurse, the principal and the assistant principal, where petitioner’s daughter’s needs were discussed.  Therefore, upon the record before me, I do not find that respondents’ actions were in violation of any applicable law, regulation or policy.    

Petitioner’s complaints concerning the cell phone committee must be dismissed.  Petitioner has failed to demonstrate that she was entitled to serve on the cell phone committee or that the establishment of such committee was in violation of any law or regulation.  Moreover, the record reveals that the cell phone committee was established on September 8, 2008 and that petitioner did not express an interest in participating on such committee until September 28, 2008.  Moreover, this Committee was not formed as part of the shared-decision making process and, therefore, was not in violation of §100.11 of the Commissioner’s regulations.   

Petitioner’s claims relating to the cell phone policy must also be dismissed.  A board of education is authorized to adopt regulations concerning the order and discipline of the schools (Education Law §1709[2]) and to adopt a code of conduct for the maintenance of order on school property (Education Law §2801).  Pursuant to such authority, a school district has the right to restrict or prohibit cell phone usage throughout their buildings (seegenerallyPrice v. New York City Bd of Educ., 16 Misc 3d 543, affd on other grounds 51 AD3d 277, mot. for leave to appeal den. 11 NY3d 702).  Petitioner has not demonstrated that respondent’s cell phone policy is arbitrary, unreasonable or in violation of law.

Finally, while I am sympathetic to petitioner’s claim of lack of parental involvement in the cell phone committee, I cannot conclude that the policy was so devoid of input as to warrant annulling the policy or to establish a new cell phone committee.  Parents were allowed to present their concerns at several board meetings prior to the adoption of the policy.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE

[1]  The record indicates that respondent Suozzi is a tenured assistant superintendent.