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Decision No. 16,796

Appeal of K.M., on behalf of his daughter, from action of the Board of Education of the East Ramapo Central School District regarding access to school district property.

Decision No. 16,796

(July 24, 2015)

Minerva & D’Agostino, P.C., attorneys for respondent, Roslyn Z. Roth, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges decisions of the Board of Education of the East Ramapo Central School District (“respondent”) to include information regarding his level one sex offender designation on both the district’s website and in its mailings and to ban him from school property.  The appeal must be dismissed.

During the 2010-2011 school year, petitioner’s daughter was a student in respondent’s district.  According to the petition, in September 2010, petitioner and his wife had a meeting with their daughter’s guidance counselor, during which petitioner advised the guidance counselor of his level one sex offender[1] designation.  Subsequently, by letter dated September 16, 2010, respondent’s attorney advised petitioner that, pursuant to the provisions of Penal Law §65.10(4-a), he was prohibited from entering any school property or grounds owned by or under the control of the district.  The letter further informed petitioner that if he entered or attempted to enter any school property or grounds owned by or under the district’s control, district staff had been directed to immediately request assistance from law enforcement authorities and that the district would pursue any and all appropriate civil and/or criminal remedies against him.[2] 

By letter dated to respondent’s attorney dated September 18, 2010, petitioner asserted that there was no legal reason to ban him from school property, thereby prohibiting him from fully participating in his daughter’s education by preventing him from attending any school events and voting on school property.[3]  Petitioner further maintained that Penal Law §65.10(4-a) did not apply to him and that the district had misinterpreted its provisions.  Petitioner also claimed that his daughter had been traumatized by the district’s past and present actions against him, including the district’s alleged improper inclusion of his level one sex offender designation on its website.  The letter requested that the district provide petitioner with a written explanation for its decision to ban him from school property.

Petitioner maintains that, thereafter, he and his wife made several other unsuccessful attempts to resolve this matter with the district, including having an attorney contact respondent’s attorney to discuss possible resolutions.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner asserts that respondent’s inclusion of information regarding his level one sex offender designation on the district’s website and in its mailings is arbitrary and capricious because, inter alia, it gives the false impression that he has recently moved into the district. Petitioner further argues that respondent’s decision to ban him from school property based on his level one sex offender designation is arbitrary and capricious and not required or authorized by Penal Law §65.10(4-a).  Petitioner also argues that, contrary to respondent’s contentions, he is not seeking unlimited access to school property, he is only seeking the same access to school property that other parents of district students have.  Petitioner seeks, among other things, a reversal of respondent’s decision to ban him from school property. 

Respondent contends that the petition is untimely and fails to state a claim upon which relief can be granted.  Respondent further asserts that petitioner is not entitled to unsupervised access to school property.  Respondent also contends that it is providing petitioner with supervised access to meet with teachers and attend teacher conferences and maintains that its decision to provide petitioner with supervised access to school property, due to his level one sex offender designation, is rational, appropriate and within its authority. 

I must first address the procedural issues.  Petitioner has submitted both a response to respondent’s affidavit in opposition to petitioner’s request for interim relief (“response”) and a reply to respondent’s verified answer.  Petitioner’s response is not a pleading included in §275.3 of the Commissioner’s regulations (see Appeal of Gordiner, 52 Ed Dept Rep, Decision No. 16,433).  However, I note that the affidavit submitted in opposition to petitioner’s request for interim relief is referenced in paragraph 8 of respondent’s answer and is annexed thereto as an exhibit.  Consequently, I will permit petitioner’s submission as in the nature of a reply to respondent’s answer.  A liberal interpretation of the rules is appropriate when petitioner is, as here, proceeding without the representation of counsel and there is no prejudice to respondent (Appeal of Gordiner, 52 Ed Dept Rep, Decision No. 16,433).

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 petitioner’s reply documents, 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.

With respect to the issue of access to school property, the appeal must be dismissed as 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).  The petition challenges respondent’s September 16, 2010 determination and seeks a “complete reversal” thereof.  Petitioner received such determination more than 30 days prior to the commencement of this appeal on December 28, 2010.  Although petitioner asserts that he made several attempts to persuade respondent to reconsider this determination, it is well-settled that reconsideration requests do not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851). 

Although not entirely clear from the petition, to the extent petitioner attempts to challenge respondent’s alleged dissemination of information regarding petitioner’s level one sex offender status over “several years,” I note that petitioner submits no evidence to support this claim.  For example, petitioner has not submitted documentation of any such allegedly improper communication or dissemination and does not allege that such dissemination existed or was on-going at the time this appeal was commenced.  Thus, to the extent petitioner challenges any such dissemination which occurred more than 30 days prior to the commencement of this appeal, such claim is untimely. 

Further, although not specifically alleged, to the extent petitioner attempts to challenge any such dissemination that existed or continued at the time this appeal was initiated, I note that, pursuant to Correction Law §168-l(6)(a), law enforcement agencies with appropriate jurisdiction may disseminate relevant information regarding a level one sex offender, which may include, among other things, a photograph and description of the offender, his or her name and approximate address based on his or her zip code, and background information regarding the crime and type of victim targeted.  Likewise, when an entity receives such information from an appropriate law enforcement agency regarding a level one sex offender, it may disclose or further disseminate such information at its discretion (Correction Law §168-l[6][a]).

Finally, to the extent petitioner seeks the “immediate reprimand” of respondent board, I note that the Education Law does not authorize the censure or reprimand of board members by the Commissioner (see e.g., Appeal of L.S., 44 Ed Dept Rep 142, Decision No. 15,126; Matter of Legatos, 23 id. 10, Decision No. ll,ll3; Matter of Graham, 11 id. 220, Decision No. 8,426).

Although I am constrained to dismiss the appeal for the reasons described above, I am compelled to comment on respondent’s decision to ban petitioner from school property.  Penal Law §65.10(4-a) imposes as a mandatory condition of a sentence of probation or conditional discharge for certain specified sex offenses, including conviction of offenses under Article 263 of the Penal Law, that the individual refrain from knowingly entering school grounds, except under certain specified conditions.  Petitioner was convicted of the crime set forth in Penal Law §263.16, which is part of Article 263.  However, although the record contains limited information regarding petitioner’s conviction and the facts and circumstances related thereto, the record indicates that petitioner advised respondent by letter dated September 18, 2010 that his probation ended a decade earlier.  Since petitioner is a level one sex offender, rather than a level three sex offender, the prohibition in Penal Law §65.10(4-a) would no longer apply once the period of probation or conditional discharge has ended.  I urge respondent and its counsel to review the provisions of Penal Law §65.10(4-a) concerning the circumstances under which sex offenders are prohibited and can be prohibited from entering into or upon school grounds, as that term is defined in Penal Law §220.00(14)(a).

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Based on the recommendations of a Board of Examiners of Sex Offenders, convicted sex offenders are assigned to one of three risk classifications, depending on the level of risk of repeat offense (see Correction Law 168-l[6]).  A level one designation means that the risk of repeat offense is deemed low (see Correction Law §168-l[6]). According to information my Office of Counsel obtained from the New York State Division of Criminal Justice Services’ Sex Offender Registry Information Line (“DCJS Information Line”), on October 21, 1999, petitioner was convicted of attempted possessing a sexual performance by a child (see Penal Law §§263.16 and 110.00).  The DCJS Information Line further advised that, as a result of this conviction, petitioner was designated as a level one sex offender and sentenced to three years probation, which he has completed.

 

[2] It should be noted that the record contains no allegation that petitioner has acted or behaved inappropriately on school property. 

 

[3] This letter indicates that petitioner may have included a certificate of relief from disabilities (“certificate”) for his conviction as an attachment thereto.  However, petitioner did not submit this certificate as part of the instant appeal.