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Decision No. 16,231

Appeal of TOMMY R. KEHOSKIE from action of the Board of Education of the West Genesee Central School District regarding a board policy.

Decision No. 16,231

(June 3, 2011)

Harrigan & Dolan, attorneys for petitioner, Paul J. Dolan, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Joseph G. Shields, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the adoption by the Board of Education of the West Genesee Central School District (“respondent”) of a policy regarding the naming of district facilities.  The appeal must be dismissed.

The record indicates that at the board’s March 18, 2009 meeting, petitioner presented a petition to place a proposition on the ballot at the district’s May 2009 annual meeting (the “March 2009 petition”).  The March 2009 petition contained 1,147 signatures and sought to name an athletic facility after a retired physical education teacher and current coach in the district.  According to petitioner, respondent failed to respond to the March 2009 petition and, on or about February 3, 2010, approved policy 1540, which states that “[n]o building, area within the building or other communally used District owned facility will be dedicated to or named for an individual.”

In response to petitioner’s allegations, respondent has submitted the minutes of its March 18, 2009 meeting, which indicate that the board made the following statement regarding the March 2009 petition:

  • Philosophically, the Board disagrees with the approach of naming our buildings and facilities after adults ... [which would take] energy away from our focus on children.
  • The board is exploring the creation of a documented policy in this are[a], but we do not have one in place at this time.
  • Given this background, the Board is not going to act on this petition. We will continue to look at options for dealing with the larger challenge of recognition.

Respondent also submitted the minutes from its October 21, 2009 meeting, at which proposed policy 1540 was discussed by the board and members of the public, including petitioner.  The proposed policy was also discussed at the board’s December 16, 2009 meeting and was approved by the board at its January 20, 2010 (first vote consideration) and February 3, 2010 (second vote consideration) meetings.[1]

Petitioner argues that respondent adopted policy 1540 “in direct contradiction of the wishes of 1,147 of their constituents” and in “violation of the terms and conditions” of a district “community relations goal,” adopted in February 2001, “to ascertain the opinions and desires of the community with respect to the operations of the school district and to incorporate that knowledge into its actions.”  Petitioner requests that I reverse respondent’s adoption of policy 1540, direct respondent to “take reasonable steps to ascertain the opinions and desires of the community” with respect to the March 2009 petition, and to take appropriate action “after that investigation.”

Respondent argues that the appeal must be dismissed as untimely and for failure to state a claim upon which relief may be granted.  Respondent maintains that its adoption of policy 1540 and its decision not to name school district facilities as requested by petitioner were in all respects proper.

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 a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Respondent served its answer by mail on March 21, 2011.  Thus, petitioner’s reply should have been served no later than April 6, 2011.  Petitioner served his reply on April 12, 2011.  The reply, therefore, is untimely and I have not considered it.

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).  Although petitioner’s argument is not entirely clear, he asserts that the 30-day period “has never begun to run since the essential fact is that the Board has never ascertained the feelings of the community with respect to” policy 1540.  Despite petitioner’s assertions, the central issue in this appeal is petitioner’s objection to respondent’s adoption of policy 1540, which occurred in February 2010.  However, petitioner did not commence this appeal by personal service on the district clerk until March 3, 2011 – more than one year after respondent adopted the policy about which petitioner now complains.  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  The naming of a school building or, in this case, an athletic facility, is within the discretion of the board of education and not within the powers of the voters enumerated in Education Law §2021 (seeAppeal of Fingerhut, 1 Ed Dept Rep 60, Decision No. 6,461).

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

THE APPEAL IS DISMISSED.

END OF FILE.

[1] In its verified answer, respondent notes that, on or about March 17, 2010, petitioner sought to place a proposition similar to that contained in the March 2009 petition on the ballot at the district’s May 2010 annual meeting.  In a March 21, 2010 letter from the board president, the board denied petitioner’s request based on policy 1540.  Petitioner does not challenge this decision in the instant appeal.