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Decision No. 16,588

 

 Appeal of IRENE PARRINO from action of the Board of Education of the Mineola Union Free School District regarding board practices.

Decision No. 16,588

(February 13, 2014)

Harris Beach, PLLC, attorneys for respondent, Susan E.Fine, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals various actions of the Board of Education of the Mineola Union Free School District (“board” or “respondent”) relating to board practices. The appeal must be dismissed.

Petitioner was a member of respondent board at the time of the events giving rise to the instant appeal. Petitioner claims that at three board meetings in June2013, she was subjected to public humiliation and harassment and that respondent and its members failed to call the meetings to order. In a previous appeal, petitioner sought the removal of fellow board member Terence Hale (“Hale”) for allegedly sending inappropriate mails to her and others despite “directives” from board members that he cease such communications (see Appeal of Parrino, 53 Ed Dept Rep, Decision No. 16,547) (“first appeal”). The first appeal was dismissed as moot by virtue of Mr. Hale’s resignation, which was effective July 2, 2011(see Appeal of Parrino, 53 Ed Dept Rep, Decision No.16,547).

In the instant appeal, petitioner alleges that at a June 5, 2013 board meeting, Mr. Hale made a public statement in which he called petitioner’s first appeal “frivolous” and stated that he would resign so as not to “waste school district funds defending the frivolous charges.” According to petitioner, during the open public commentary that followed Mr. Hale’s statement, several individuals spoke on Mr. Hale’s behalf “to attack” her, and three board members publicly praised Mr. Hale’s years of service. According to petitioner, those three board members allowed Mr. Hale “and his associates” to harass her despite her complaint, and no member of the board made a motion to call Mr. Hale or any of the speakers to order “in violation of Robert’s Rules of Order and [respondent’s]code of conduct.”

Similarly, petitioner alleges that at a June 11, 2013“special meeting” of respondent, a board member “harassed[p]etitioner to withdraw her complaint” in the first appeal in light of Mr. Hale’s impending resignation, yet no board member made a motion to call him out of order. Respondent then allegedly “improperly voted to hear public comment when it had voted to close the meeting with a second.” Petitioner claims that this conduct violates Robert’s Rules of Order and respondent’s code of conduct.

Finally, petitioner claims that at respondent’s June20, 2013 meeting, Mr. Hale again made public statements in which he attacked and humiliated petitioner, and “continued to harass” her in executive session, but no board member called Mr. Hale to order “in violation of Robert’s Rules of Order and [respondent’s] code of conduct.” This appeal ensued.

Petitioner claims that the conduct of respondent and its members at the June 2013 meetings and “continu[ing]through letters to the editor of local newspapers” were in retaliation for petitioner’s commencement of the first appeal. She requests a declaratory judgment that (1) Mr.Hale engaged in a campaign of public harassment of petitioner from the time she filed her “original complaint” against him up to and including respondent’s meeting on June 20, 2013; (2) other members of the board “aided, abetted, and ascended [sic]” to Mr.Hale’s harassment of petitioner from the time she filed her previous “complaint” with the Commissioner up until the June 20, 2013 meeting; and (3) respondent “violated her right not to be harassed for filing a petition against Mr.Hale for his egregious conduct against her and others when it failed to call him and others to order at public meetings” in violation of Robert’s Rules of Order and respondent’s code of conduct. Petitioner further requests an order “directing present and former members of [the board] to cease and desist from publicly attacking petitioner and from encouraging others to publicly attack her” and “to comply with its own rules of order and the school district code of conduct in the future.”

Respondent generally denies any wrongful conduct and asserts that there is no basis in fact or law for any of the requested relief. Respondent contends that the petition is untimely as to the alleged conduct that occurred prior to June 20, 2013, and that petitioner failed to join necessary parties. Respondent also argues that the petition must be dismissed for failure to state a claim for which relief can be granted and that petitioner improperly 2

seeks a declaratory judgment. Respondent further argues that the Commissioner is without jurisdiction or authority to issue orders to a community member.

I must first address several procedural issues. Respondent argues that petitioner’s memorandum of law (with attached exhibits) should be rejected as it is in the nature of a reply and is not limited to legal arguments. A memorandum of law should consist of arguments of law (8NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings(Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84,Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). Petitioner’s memorandum of law includes new factual assertions, arguments, and exhibits that are not part of her verified petition. Moreover, petitioner chose not to submit a reply even though my Office of Counsel specifically granted her request for an extension of time to do so. Therefore, I have not considered those portions of petitioner’s memorandum of law that add new allegations and exhibits that are not part of the pleadings.

Respondent contends that the petition is untimely as to all factual allegations occurring prior to June 20,2013. 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 record indicates that the acts and omissions of which petitioner complains occurred between June 5 and June 20, 2013. Petitioner was therefore required to commence her appeal by July 5, 2013, in order to challenge all of the alleged acts and omissions. According to the affidavit of service, however, the petition was not served until July 22, 2013. Petitioner asserts that July 20 - 30days from the date of the last meeting - fell on a Saturday. Where, as here, the 30-day time period in which to commence an appeal ends on a Saturday, Sunday, or a public holiday, a petition may be served on the next succeeding business day (8 NYCRR §275.8[a]). Petitioner therefore had until Monday, July 22, 2013, to serve her petition as to the allegations occurring on June 20, 2013.All allegations in the petition relating to acts or omissions prior to June 20, 2013, however, are untimely.

Petitioner claims that the statute of limitations as to occurrences prior to June 20, 2013 is tolled under the “continuing violation” theory. The continuing wrong 3

doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506,Decision No. 12,901). The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]). Petitioner challenges specific, single actions and inactions of respondent and its members, the results of which are not intrinsically unlawful. Accordingly, the continuing wrong doctrine does not apply as to the events occurring prior to June 20,2013.

To the extent petitioner seeks a declaratory judgment, including an order directing the board to “comply with its own rules of order and the school district code of conduct in the future,” the appeal must be dismissed for failure to state a claim. It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law§310 (Appeal of Islip Teachers Association, 52 Ed Dept Rep, Decision No. 16,418; Appeal of a Student with a Disability,48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Therefore, to the extent petitioner requests declaratory relief, the petition must be dismissed.

To the extent that petitioner seeks relief with respect to the conduct of Mr. Hale and “other members” of the board at the July 20 meeting, including an order directing present and former board members to cease and desist from publicly attacking petitioner and from encouraging others to publicly attack her, the appeal must 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 4

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).While petitioner named only the board as a respondent in the caption of this proceeding and personally served the superintendent’s secretary, the petition purports to seek relief against present and former individual board members, including Mr. Hale. As described above, if petitioner were to prevail in this appeal, the rights of these individual members of the board would be affected. However, petitioner failed to name any individuals as respondents in this appeal and offers no proof of service upon any individuals. Accordingly, the appeal must be dismissed for failure to join necessary parties.

To the extent the petition asserts that the board violated its policies and Robert’s Rules of Order with regard to the conduct of meetings, the appeal must be dismissed. 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; Appealof Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M.,48 id. 348, Decision No. 15,882). While the Commissioner has authority to enforce a school district's policy where it has been established that a board violated that policy(Appeal of Christiano, 50 Ed Dept Rep, Decision No. 16,217;Appeal of Pulvermacher, 36 id. 333, Decision No. 13,740;Appeal of Joannides, 32 id. 278, Decision No. 12,830; Appeal of Brenner, 28 id. 402, Decision No. 12,153), the petition neither cites nor includes any specific provisions of respondent’s policies or Robert’s Rules of Order which were allegedly violated. Under these circumstances, petitioner has not sufficiently established a violation to warrant my intervention (see Appeal of Marek, 35 Ed Dept Rep 314, Decision No. 13,554). Indeed,as respondent notes, the record does not indicate that petitioner, also a board member, made any motion or point of order with respect to the alleged conduct at the June 20meeting about which she now complains. Education 5

Law §1709(3) authorizes a board of education to manage and administer the affairs of the school district. Although the Commissioner has broad powers and may substitute his judgment for that of the individuals or boards whose action he is reviewing (Matter of Board of Educ. v. Allen, 6 NY2d127), the facts in this case do not require me to do so.

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

THE APPEAL IS DISMISSED. END OF FILE