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Decision No. 16,155

Appeal of JOYCE C. WACHALA from action of the Board of Education of the City School District of the City of Schenectady and Superintendent Eric Ely regarding election expenditures and application for removal of members of the board of education.

Decision No. 16,155

(September 30, 2010)

Shari Greenleaf, Esq., attorney for respondents

STEINER, Commissioner.--Petitioner, a former member of the Board of Education of the City School District of the City of Schenectady (“board”), challenges the alleged expenditure of district funds for board member campaigns.  She also seeks the removal of unspecified board members.  The appeal must be dismissed and the application for removal must be denied.

Petitioner was elected as a member of the board at the May 2009 school district election.  She was sworn in on July 1, 2009 but resigned on August 11, 2009.  According to the superintendent’s affidavit, on April 1, 2009, prior to the election, the board commissioned an independent investigation into allegations of workplace misconduct against a long-time district employee.[1]  At its June 23, 2009 meeting, the investigator reported to the board during executive session and issued a written report.  Petitioner and another board member-elect were not permitted into executive session.

Following the execution of her oath of office on July 1, 2009, petitioner was permitted to review the report, which, according to the superintendent, was also the subject of litigation based on the district’s refusal to disclose its contents.  Petitioner makes several allegations in her petition based on certain findings in the report to which she had privy as a board member, including that district employees campaigned for board candidates during work hours.

Petitioner requests that the Commissioner review the independent report, require board candidates for whom district employees allegedly campaigned to reimburse the district, and remove those successful board candidates.

Respondents assert that the petition fails to state a claim upon which relief may be granted and is untimely.  Respondents assert further that petitioner lacks standing and failed to join and serve necessary parties.  They also contend that the Commissioner lacks the authority to grant the remedies petitioner seeks.  Finally, respondents assert that petitioner has improperly disclosed confidential information acquired in the course of her duties as a board member in violation of State law and the State Constitution.

I must first address several procedural issues.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  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.

The appeal and application for removal must be dismissed as untimely.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  Petitioner commenced this appeal by service upon the superintendent and clerk of the board on December 22, 2009.  To the extent petitioner complains about alleged improper expenditures on campaigns for board candidates, the appeal is clearly untimely since the election occurred on May 19, 2009, more than seven months prior to service of the petition.  To the extent petitioner learned about any alleged improprieties from the investigative report, she admittedly did so in the course of her official duties as a member of the board.  Thus, the latest date on which she could have learned any such information was August 11, 2009, the date she resigned, yet the appeal was still not commenced until over four months later.  Petitioner has failed to establish any good cause for her delay.  Accordingly, the appeal must be dismissed and the application for removal must be denied as untimely.

The appeal and application for removal must also be dismissed for failure to join necessary parties.  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner requests the removal of unspecified board members for whom employees allegedly campaigned during work hours.  Petitioner failed to name any board members in the caption and failed to personally serve any board members with a copy of the petition and notice of petition.  Accordingly, her application for removal must be denied (Appeal of Klock, 49 Ed Dept Rep 214, Decision No. 16,005).

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

THE APPEAL IS DISMISSED AND THE APPLICATION FOR REMOVAL IS DENIED.

END OF FILE.

[1] The Commissioner takes judicial notice that this employee was convicted in Schenectady County Court in April 2010 on 18 of 22 counts against him, including arson and conspiracy.