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Decision No. 16,872

Appeal of JEFF ROTH from action of the Board of Education of the Farmingdale Union Free School District regarding attendance at school board meetings.

Decision No. 16,872

(February 9, 2016)

Guercio & Guercio, LLP, attorneys for respondent, Randy Glasser, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges action of the Board of Education of the Farmingdale Union Free School District (“respondent”) prohibiting him from attending its board meetings.  The appeal must be dismissed.

Petitioner is a resident of respondent’s school district.  The record in this matter details a difficult relationship between petitioner and members of respondent board and district staff spanning several years.  Respondent submits affidavits that detail, among other things, a history of contentious interactions between petitioner and members of respondent board or district staff via telephone calls, voicemails, emails and other confrontations.

By letter dated September 18, 2014, respondent notified petitioner that, as a result of his “continuing conduct,” petitioner was “prohibited from entering upon any of the District’s buildings, or grounds of such buildings, including, but not limited to, attending School Board and committee meetings...” for the period of September 18, 2014 through October 18, 2014.  The record indicates that petitioner attended a board meeting on October 8, 2014, in violation of the aforementioned prohibition.

Thereafter, by letter dated November 6, 2014, respondent notified petitioner that he was again prohibited from entering district property.  This second ban was effective for the period of November 7, 2014 through February 7, 2015.  Respondent’s letter set forth the basis for the ban, including additional incidents that had occurred since the September 18, 2014 letter, during which petitioner’s behavior was characterized as inappropriate and, at times, threatening.

Respondent indicates that, following the expiration of the second ban, petitioner continued to engage in inappropriate behavior.  As a result, by letter dated March 11, 2015, respondent notified petitioner that he was again prohibited from entering district property for the period of March 12, 2015 through June 30, 2016.  Respondent’s letter set forth the basis for the ban, including certain conduct at a board meeting, telephone calls to district staff, and a threatening email to the board.  The record indicates that petitioner has continually violated this ban, leaving multiple voicemails for respondent’s superintendent and entering onto district property on several occasions.  Additionally, on June 29, 2015, petitioner was arrested for trespassing on district property and charged with criminal trespass in the third degree.  A temporary order of protection was issued to respondent’s superintendent against petitioner as a result of the arrest.  This appeal ensued.

In a seven-paragraph petition, petitioner asserts in conclusory fashion that respondent’s action banning him from attending public board meetings is arbitrary and constitutes censorship of his constitutional right to free speech.  Petitioner also argues that he was denied due process because he was not allowed to protest the bans.  As relief, petitioner requests that I conduct a fact-finding investigation into the three bans and that I make a “determination of future procedures of due process for all school taxpayers.”  Additionally, petitioner seeks a “formal written apology” and “resignation of specific board members,” although he does not name any individual board member.

Respondent raises a number of procedural objections.  Initially, respondent contends that petitioner’s reply is defective, as it is not verified.  Respondent asserts that petitioner lacks standing to bring a claim on behalf of all taxpayers and that the appeal is also untimely and moot.  Respondent also argues that, to the extent petitioner seeks removal of any board member, the appeal should be dismissed for lack of subject matter jurisdiction, failure to join individual board members and lack of notice.  Respondent also contends that, to the extent petitioner seeks an apology, investigation or advisory opinion, the Commissioner lacks the authority to grant the relief requested.  On the merits, respondent asserts that its action was rational and consistent with district policy and, thus, was not arbitrary.  Respondent also contends that petitioner was not entitled to due process, as access to schools is not a protected liberty or property interest.

I will first address respondent’s procedural objections.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  In addition, 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).  Petitioner’s reply is not verified as required by §275.5 and includes assertions and exhibits that should have been in the petition.  Therefore, I have not considered petitioner’s reply (see Appeal of a Student With a Disability, 46 Ed Dept Rep 102, Decision No. 15,454; Appeal of Nocerino, 40 id. 244, Decision No. 14,472; Appeal of Principio, 39 id. 11, Decision No. 14,157).  Accordingly, I have not considered respondent’s sur-reply.

Although the petition is not entirely clear, to the extent that petitioner seeks relief on behalf of all school district taxpayers, he lacks standing to do so (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609).  However, petitioner may maintain the appeal on his own behalf.  It is well settled that an individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689)  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  As a district resident who is the subject of respondent’s prohibition from attendance at its meetings, petitioner has standing to challenge respondent’s action.

The appeal, however, 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).  Petitioner was notified by letters dated September 18, 2014, November 6, 2014, and March 11, 2015 of the respective periods during which respondent restricted his access to school district property and prohibited his attendance at board meetings.  This appeal was not commenced until June 11, 2015.  

When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  Even affording petitioner five days for mailing from the date of each of respondent’s letters, petitioner’s appeal is two to eight months late.  Indeed, with respect to respondent’s last notice, dated March 11, 2015, petitioner’s claims would have been timely brought if the appeal was commenced by April 15, 2015; yet, as noted, the appeal was not initiated until June 11, 2015.  Petitioner offers no cause for the delay in commencing his appeal.  Therefore, the appeal is untimely, warranting dismissal.

The appeal must also 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). 

The initial periods of prohibition set forth in respondent’s September 18, 2014 letter (September 14, 2014 - October 18, 2014) and respondent’s November 6, 2014 letter (November 7, 2014 - February 7, 2015) expired prior to commencement of this appeal.  Petitioner’s challenge to them, therefore, is moot.  The record also indicates that, on July 13, 2015, a temporary order of protection[1] was issued prohibiting petitioner from being within 100 yards of respondent’s superintendent of schools.  Even if I were to overturn respondent’s March 11, 2015 action prohibiting petitioner’s attendance at its board meetings through June 30, 2016, insofar as respondent’s superintendent is present at respondent’s board meetings, the record indicates that the court-issued order of protection is still in effect, and I have no authority to review or annul a court order (see e.g., Appeal of Forrest, 55 Ed Dept Rep, Decision No. 16,842).  Petitioner’s challenge to that board action, therefore, is also academic.

Although the petition is not entirely clear, petitioner’s request for the “resignation of specific board members” must be dismissed for failure to join necessary parties and failure to provide proper notice.  

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 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). 

To the extent that petitioner is seeking the “resignation” or removal of “specific board members,” the rights of such board members would clearly be affected should petitioner prevail.  No member of respondent board was named as a respondent in the caption of the petition or served with a copy of the petition.  Therefore, the appeal must be dismissed for failure to join necessary parties.

Additionally, to the extent petitioner seeks the removal of specific board members, 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 include 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). 

Finally, I note that petitioner states that the purpose of this proceeding “is to file a section 310 appeal.”  As such, an appeal pursuant to §310 of the Education Law is not the proper forum to seek removal pursuant to Education Law §306 (Appeal of J.H. and T.H., 54 Ed Dept Rep, Decision No. 16,688).

Petitioner’s request that I order a fact-finding investigation must also be denied.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).  Similarly, 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 a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Thus, to the extent that petitioner seeks “a determination of future procedures of due process...,” the appeal must be dismissed.

Finally, to the extent petitioner seeks an apology, the Commissioner lacks the authority to order the board of education or any school district employees to issue an apology (Appeal of L.D., 55 Ed Dept Rep, Decision No. 16,864; Application of McDougall and Dacey, 42 id. 195, Decision No. 14,819).

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Neither party has indicated that the temporary order of protection has been lifted or vacated.