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Decision No. 16,330

Application of SALLY STEPHENSON for the removal of Steven Achramovitch as Interim Superintendent of Schools of the Hamburg Central School District.

Application of SALLY STEPHENSON for the removal of Joan Calkins as President of the Board of Education of the Hamburg Central School District.

Decision No. 16,330

(February 17, 2012)

Harris Beach, PLLC, attorneys for respondents, Douglas Gerhardt, Esq., of counsel

KING, JR., Commissioner.--In two separate applications, petitioner seeks the removal of interim superintendent Steven Achramovitch (“Achramovitch”)[1] and board president Joan Calkins (“Calkins,” collectively referred to as “respondents”).  Because the applications present similar issues of fact and law, they are consolidated for decision. The applications must be denied.

Petitioner’s removal applications arise out of the September 21, 2010 decision of the Board of Education of the Hamburg Central School District to accept respondent Achramovitch’s recommendation that her daughter’s probationary appointment as a high school social studies teacher be terminated.[2]

Although the applications are not entirely clear, petitioner claims that Achramovitch engaged in wilful misconduct by deliberately manufacturing claims about her daughter to the board to aid in his attempt to terminate her probationary appointment.  Specifically, petitioner alleges that at the September 21, 2010 board meeting, Achramovitch claimed to possess a report and affidavits from certain individuals regarding her daughter.  Petitioner alleges that these individuals denied writing such affidavits and that, although petitioner requested such documents from the district under the Freedom of Information Law (“FOIL”), petitioner allegedly never received such documents. 

Petitioner alleges that Calkins manufactured claims against her daughter at the September 21 board meeting. Petitioner claims that Calkins voted to terminate her daughter without validating all sources of information and statements on the matter and that Calkins improperly considered the complaint of a student when there was a conflict of interest between the student and Calkins, as the student was a patient in Calkins’ medical practice.  Petitioner also alleges that Calkins failed to investigate an alleged “grade fraud scandal” which was brought to the attention of the board in spring 2010 and alleges violations of the Open Meetings Law.  She also contends that Calkins permitted harassing remarks to be made at the September 21 board meeting against petitioner’s daughter.  Petitioner seeks the removal of Calkins as board president and of Achramovitch as superintendent.

Respondents allege that the applications must be denied for lack of personal jurisdiction and as untimely.  Respondents maintain that the Commissioner lacks jurisdiction over the alleged FOIL and Open Meetings Law violations and that petitioner is currently litigating the Open Meetings Law claims in an Article 78 proceeding.  Nevertheless, respondents maintain that the applications must be denied because they fail to state a claim upon which relief can be granted.   Respondents also ask that I reject petitioner’s replies in both applications because they are not properly verified and contain new allegations that are not responsive to material or affirmative defenses in the answer.  Respondent Achramovitch also asserts that the application against him is moot.

First, I must address several procedural issues.    Respondents allege that the replies, which are both entitled “Answer,” are not properly verified and, therefore, must be rejected.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  Petitioner has provided affidavits of verification with each reply that are signed, dated and notarized.  Therefore, I must reject respondents’ claims that the replies were not properly verified. 

However, 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 replies, 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.

Respondent Achramovitch also asserts that the application for his removal must be denied as moot because he is no longer the interim superintendent.  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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  While Achramovitch is no longer employed by the board as interim superintendent, he was appointed to the position of superintendent of schools on December 14, 2010 and is a school officer as defined in Education Law §306.  Therefore, I will not deny the application on this ground.

However, the applications must be dismissed for lack of proper service.  Commissioner’s regulation §275.8, which is made applicable to removal proceedings by Commissioner’s regulation §277.1, provides in pertinent part:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent’s residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the commissioner.

Petitioner submits an affidavit of service from her son stating that he personally served Achramovitch on December 3, 2011.  In contrast, Achramovitch states in his affidavit that petitioner herself personally handed him the removal application at the district office on December 3, 2010.  Petitioner submits no reply or other evidence to the contrary.  Commissioner’s regulation §275.8(a) requires that a petition be served by someone who is over 18 and not a party to the appeal (seeAppeal of Hughes, 48 Ed Dept Rep 299, Decision No. 15,865).  Accordingly, the application must be dismissed for improper service. 

In the second application, petitioner again submits an affidavit of service from her son indicating that he personally served Calkins on December 4, 2010.  However, Calkins states in an affidavit that she was out of town on December 4th and was not personally served.  Rather, Calkins avers that the application was left in the doorway at her home sometime over the December 4-5, 2010 weekend.  Indeed, petitioner admits in her reply that Calkins was never personally served.  Moreover, the affidavit of service does not allege that any “diligent search” was made for Calkins and no request for alternate service was made to the Commissioner.  As a result, this application must be denied (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Application of Barton, 48 id. 189, Decision No. 15,832).

In this case, the claims asserted against Achramovitch and Calkins relate to alleged improper conduct at the September 21 board meeting.  While petitioner alleges that she did not learn of respondents’ conduct at the September 21 executive session until November 5, 2010, the record contains an affidavit from a local official which establishes that petitioner met with him on September 22, 2010 and petitioner was in possession of a copy of a recording of the September 21 board meeting on that date.[3] Petitioner submits no evidence to the contrary.  Because petitioner failed to serve the applications until December 3, 2010 and December 4, 2011, more than 30 days after she became aware of the alleged conduct, such claims must be dismissed as untimely.   Finally, to the extent petitioner also objects to Calkins’ failure to act on an alleged “grade fraud scandal” brought to her attention in spring 2010 and addressed by petitioner at the board’s July 6, 2010 meeting, such claim is also untimely.

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

THE APPLICATIONS ARE DENIED.

END OF FILE

[1] At a special meeting on December 14, 2010, the board appointed Achramovitch as superintendent of schools and terminated his employment as interim superintendent.

[2] This matter is also the subject of a related appeal brought by petitioner’s daughter and decided on February 9, 2012 (seeAppeal of Stephenson, 50 Ed Dept Rep, Decision No. 16,329). 

[3] While the record is unclear as to the circumstances surrounding the recording of the September 21, 2010 executive session and petitioner’s possession thereof, respondents allege that such recording was made illegally in violation of both the Penal Law and the Open Meetings Law.  However, I have no jurisdiction to determine the merit of such claims and respondents are free to pursue such allegations in a court of competent jurisdiction.