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Decision No. 16,311

Appeal of DONALD B. OGLESBY from action of the Board of Education of the Ellenville Central School District regarding an election, and application for the removal of Superintendent Lisa Wiles, board members Karin Osterhoudt and Phillip Mattracion, and teachers Denise Moore, James Pidel and Ann Beukelman.

Decision No. 16,311

(October 28, 2011)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondents Board of Education of the Ellenville Central School District, Superintendent Lisa Wiles, and board members Karen Osterhoudt and Phillip Mattracion, James P. Drohan, Esq., of counsel

James R. Sandner, Esq., attorney for respondents James Pidel, Denise Moore and Ann Beukelman, Megan M. Mercy, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals from actions of the Board of Education of the Ellenville Central School District (“board”), Superintendent Lisa Wiles, board members Karin Osterhoudt and Phillip Mattracion and teachers Denise Moore, James Pidel and Ann Beukelman (collectively, “respondents”) regarding the district’s May 18, 2010 election.  Petitioner also seeks the removal of the individually named respondents.  The appeal must be dismissed and the application denied.

Petitioner, an unsuccessful candidate for a seat on the board, complains that respondents engaged in conduct occurring prior to the May 18, 2010 election that interfered with his campaign and the election including, allegedly: interfering with his campaign activities at a Little League game, encouraging students not to vote for him, intimidating businesses into removing or not posting his campaign signs and not investigating certain questions that were asked of him at a meet-the-candidates night that he characterizes as bullying.  Petitioner alleges that respondents’ conduct constituted, among other things, bullying, defamation, slander, professional misconduct, electioneering, and telephone electioneering which caused him personal injury and emotional anguish.  This appeal and application ensued.

While petitioner’s claims are not clearly articulated and he does not explicitly request annulment of the election results, he asserts that respondents’ various actions made a fair election impossible.  Petitioner requests removal of the superintendent, board members and teachers, and asks that I admonish school officials not to espouse partisan positions to students, lend indirect support to partisan activities or permit defamatory positions to influence students.

The board asserts that the appeal must be dismissed for failure to state a claim upon which relief may be granted.  The board further argues that any claims relating to conduct occurring before May 18, 2010 are untimely, that it was not served with certain exhibits to the petition, and that petitioner has established no basis for the removal of respondents Wiles, Osterhoudt and Mattracion.  The teachers claim the appeal is untimely, that they are not school officials subject to removal and that the petition fails to establish petitioner’s claims.

The application for removal must be denied because the notice of petition is defective.  Commissioner’s regulations require that the notice accompanying a removal application specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, 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 regulation is fatally defective and does not secure jurisdiction over the intended respondent (Application of Carrion, 50 Ed Dept Rep, Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).

Moreover, to the extent petitioner seeks the removal of teachers Moore, Pidel, and Beukelman, such application must also be denied since tenured teachers are school district employees, not school officers, and are thus not subject to removal under Education Law §306 (Appeal of Carney, 33 Ed Dept Rep 430, Decision No. 13,103).

Turning to respondents’ procedural claims, section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  Petitioner’s reply was not verified in violation of §275.5 (Appeal of a Student Suspected of Having a Disability, 46 Ed Dept Rep 453, Decision No. 15,562).  Therefore, I have not considered petitioner’s reply.

I have also not considered material submitted in unsworn documents from petitioner received by my Office of Counsel on November 4, 16 and 22, 2010.  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 Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  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 Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).

Respondents allege that petitioner failed to serve copies of tape recordings or video tapes which were alleged to be attached as exhibits to the petition.  Section 275.8(a) of the Commissioner’s regulations specifically states that a “copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers . . . shall be personally served upon each named respondent . . . .”  The failure to serve such exhibits on respondents denied them a meaningful opportunity to respond to the contents contained therein and present a defense in this appeal (seeAppeal of Koehler, 46 Ed Dept Rep 425, Decision No. 15,553; Appeal of Wells, 35 id. 367, Decision No. 13,573).  Therefore, I have not considered the contents of such tape recordings and videotapes as part of this appeal.

Petitioner also submitted newspaper articles to support his position.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Application of Gabryel, 44 Ed Dept Rep 235, Decision No. 15,158; Application of Lilly, 43 id. 459, Decision No. 15,050).

Respondents argue that petitioner’s claims regarding events occurring prior to the May 18, 2010 election are 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).  However, with respect to appeals involving school district elections, I have held that it would be unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election (Appeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.; Appeal of Maliha, 41 id. 367, Decision No. 14,716).  In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election (seeAppeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.; Appeal of Maliha, 41 id. 367, Decision No. 14,716).  Petitioner commenced this appeal by service upon respondents on June 18, 2010, within 30 days of the May 18, 2010 election.  Therefore, to the extent petitioner’s claims are closely related to the May 18, 2010 election, I decline to dismiss them as untimely.

To the extent that petitioner raises claims that do not arise under the Education Law, such as defamation and slander, I lack jurisdiction over such claims, which may be raised in a court of competent jurisdiction (Appeal of P.S., 49 Ed Dept Rep 61, Decision No. 15,958; Appeal of Federico, 35 id. 269, Decision No. 13,538).

To the extent petitioner requests that I reprimand respondents, such claims must also be dismissed.  There is no provision in the Education Law authorizing censure or reprimand of a board member or district staff by the Commissioner of Education (Appeal of Coleman, et al., 42 Ed Dept Rep 256, Decision No. 14,845; Appeal of Kozak, 39 id. 278, Decision No. 14,237).

The only remaining claims are petitioner’s allegation that district resources were used to influence the election and his claim that respondents’ actions affected the fundamental fairness of the election.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Petitioner has failed to meet his burden with respect to these claims.

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

THE APPEAL IS DISMISSED AND THE APPLICATION DENIED.

END OF FILE