Appeal of DONNA KOSACK from action of the Board of Education of the Wappinger’s Central School District regarding harassment and retaliation, and application for the removal of Marilynn Schultz, Robert Rubin, Douglass Bitteker and John Lumia as board trustees.

Decision No. 16,611

(June 12, 2014)

The Bellantoni Law Firm, LLP, attorneys for petitioner, Amy L. Bellantoni, Esq., of counsel

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Daniel Petigrow, Esq., of counsel

KING, Jr., Commissioner.--Petitioner appeals from action of the Board of Education of the Wappinger’s Central School District (“board”) in relation to allegations of harassment and retaliation and seeks the removal of Marilynn Schultz, Robert Rubin, Douglass Bitterer and John Lumia (“trustees”) as board trustees (collectively “respondents”). The appeal must be dismissed and the application denied.

Petitioner, the parent of children attending the district’s schools, applied to be a volunteer during the 2012-2013 school year for two extra-curricular activities in which her children participated - football and a theater group known as “Proscenium.” Petitioner states that she wanted to volunteer for Proscenium because it was her daughter’s senior year and also because her daughter was allegedly being harassed within that group and the district was not remediating the situation. Petitioner alleges that during this time some students in Proscenium signed a petition to remove petitioner’s daughter from her position as president of Proscenium. One of these petitions apparently was presented and accepted by the board at its October 22, 2012 meeting.

Petitioner’s application to volunteer was apparently forwarded by the superintendent to the board for consideration. At its October 22, 2012 meeting, the board took no action on petitioner’s application. This appeal ensued. At its November 19, 2012 meeting, the board approved petitioner’s application.

Petitioner asserts that respondents denied her application to volunteer for Proscenium in retaliation for complaints that she made regarding the alleged harassment and bullying of her children. Petitioner claims that respondents have taken no corrective action to remediate the alleged bullying of her daughter. Petitioner also alleges that certain documents related to her children and her former attorney were released as part of a Freedom of Information Law (“FOIL”) request in contravention of FOIL and the federal Family Educational Rights and Privacy Act (“FERPA”). Petitioner seeks “reversal of the Board’s decision to deny her application as well as removal” of the named trustees.

Respondents deny petitioner’s allegations and contend that the petition must be dismissed for failure to state a claim upon which relief may be granted. Respondents claim that the petition was not personally served upon the trustees and that petitioner has thus failed to join necessary parties. Respondents further assert that the petition does not include the notice required by §275.11(c) and §277.1 of the Commissioner’s regulations for seeking removal of a board member. Respondents maintain that the Commissioner lacks jurisdiction to adjudicate alleged FOIL and FERPA violations. Respondent asserts that petitioner’s volunteer application was approved at its November 19, 2012 meeting and also that it investigated the harassment and bullying allegations and found them to be unsubstantiated.

I must first address several procedural matters. 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). Likewise, a memorandum of law should consist of arguments of law (8 NYCRR §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). Therefore, while I have reviewed petitioner’s reply and memorandum of law, I have not considered those portions containing new allegations or exhibits.

Petitioner’s application to remove the trustees must be denied for failure to personally serve them with the notice of petition and petition. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

The record contains no evidence that the instant appeal was personally served on respondents Schultz, Rubin, Bitteker and Lumia. In fact, petitioner’s affidavit of service states that a copy of the petition was personally served on the district’s clerk, Susan Penney, and that a copy was also mailed via overnight U.S. Mail to each of the respondents at “the last known address of the addressee(s) as indicated below: c/o Wappingers Falls Central School District, 167 Myers Corners Road, Wappingers Falls, New York 12590.” Respondents submitted an affidavit from Susan Penney detailing that, on November 20, 2012, an unidentified woman presented her with five copies of the petition, one for the district and four for the individual board trustees. Ms. Penney states that she was not asked if she is authorized to accept service on the individual board trustees’ behalf and that, in fact, she is not. While petitioner’s attorney states that Ms. Penney did not refuse service and was told what the five documents were, she does not allege that the district clerk was either asked or responded affirmatively to an inquiry about her authority to accept service on behalf of individual board trustees. On this record, I conclude that service upon the named trustees was defective.

Additionally, respondents correctly assert that petitioner’s application for removal of the named trustees must also be denied because the notice of petition is defective. The notice accompanying a removal application must 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 respondents (Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660). Therefore, the application for the removal of respondent trustees must be denied for improper service of process and for failure to provide proper notice.1

With respect to petitioner’s claims that certain documents were released by respondents in violation of FERPA and FOIL, the Commissioner lacks jurisdiction to consider FERPA claims. The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502). Similarly, Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679). Therefore, I have no jurisdiction to address the FOIL or FERPA allegations raised in this appeal.

Petitioner asserts that respondent board denied her application to volunteer for Proscenium at its October 22, 2012 meeting and claims that it acted in retaliation for her complaints regarding alleged harassment and bullying of her daughter. She seeks reversal of the board’s action. This claim must be dismissed as moot. 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). According to the record, at its November 19, 2012 meeting, respondent approved petitioner’s application. Respondent board’s subsequent approval of petitioner’s application renders petitioner’s request for relief on this point academic.

Even if this claim were not dismissed as moot, it would be dismissed on the merits. 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’s assertions are not supported by the record. The minutes of the October 22, 2012 board meeting indicate only that the board took no action on applications submitted by petitioner and one other individual. The board did not deny petitioner’s application, as she claims.

Moreover, there is nothing in the record indicating that the board’s failure to act on petitioner’s application on October 22, 2012 was in retaliation for her lodging complaints regarding the alleged harassment and bullying of her daughter. Petitioner’s allegations are conclusory in nature and she offers no documentary evidence – affidavits or otherwise – to establish her claim. Moreover, as noted above, at its October 22, 2012 meeting, the board chose not to vote on two applications, petitioner’s and that of another individual. This belies petitioner’s contention that the board’s inaction was directed at her. On this record, petitioner’s claim of retaliation must fail.

Petitioner’s claims regarding respondents’ failure to properly investigate her complaints of alleged harassment and bullying of her daughter also fail. The record indicates that the district did conduct an investigation. Respondent submits an affidavit by its assistant high school principal averring that, in her capacity as Dignity Act Coordinator pursuant to the Dignity for All Students Act (Education Law, Article 2) (“DASA”), she investigated petitioner’s complaint, including meeting with petitioner and her family. She states that she found no evidence of bullying and harassment, and concluded that there was insufficient evidence to substantiate the complaint. She further states that she subsequently met with petitioner’s daughter throughout the fall of 2012 and the student did not report that she felt harassed in any way. Although petitioner disputes those statements, she significantly provides no affidavit from the student or other evidence to contravene the assistant principal’s sworn affidavit.

I further note that the petition contains only conclusory allegations with respect to respondents’ investigation of petitioner’s complaint. No specific facts are pled and no affidavits or documentary evidence to support such claim are submitted. Petitioner attempts to plead additional facts in her reply, as well as in her memorandum of law, and respondent objects to both. For example, petitioner contends that, after this appeal was commenced, respondents improperly concluded the DASA investigation. As noted above, 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). Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §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). Consequently, I will not consider the additional assertions and claims improperly included in petitioner’s reply and memorandum of law. Even if such claims were properly before me, on the record before me, I cannot conclude that respondent failed to properly investigate petitioner’s complaint.

Petitioner also raises, for the first time in her memorandum of law, claims that respondents violated specific provisions of DASA. I note that petitioner’s DASA complaint was made on or about August 21, 2012 and the instant appeal was commenced on November 20, 2012. As noted above, a memorandum of law may not be used to add belated assertions 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). Therefore, insofar as petitioner seeks redress of specific alleged DASA violations, such claims should have been raised in the petition and cannot now be inserted through petitioner’s memorandum of law.

Finally, in a footnote in her memorandum of law, petitioner requests that I amend the petition, sua sponte, “to include consideration and reversal of the decision of the District to terminate its investigation...,” Respondent objects to this request. There is no authority in the Commissioner’s regulations for amendment by the Commissioner, sua sponte, of the petition in a pending appeal to add new claims, and petitioner’s request is denied.

On the record before me, petitioner failed to meet her burden of proof and failed to establish her claims, thus warranting dismissal of the appeal. In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED AND THE APPLICATION DENIED.

1 Additionally, by letter dated December 4, 2013, respondents submitted additional information indicating that trustee Marilynn Schultz is no longer a member of respondent board. Petitioner does not dispute that information. 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). Therefore, with respect to petitioner’s request for the removal of Ms. Schultz, the matter is also moot.

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