Decision No. 17,002
Application of ETHLEAN MURRAY, on behalf of her son JIE, for the removal of the members of the Board of Education of the Lakeland Central School District.
Decision No. 17,002
(November 21, 2016)
Shaw, Perelson, May & Lambert, LLP, attorneys for respondents, Margo L. May, Esq., of counsel
ELIA, Commissioner.--Petitioner seeks the removal from office of Carol Anne Dobson, president of the Board of Education of the Lakeland Central School District (“respondent” or “the board”) and other members of the board. The application must be denied.
According to the record, petitioner’s son (“the student”) attended Thomas Jefferson Elementary School in respondent’s district through the beginning of the 2015-2016 school year. The petition contains 48 paragraphs alleging various acts of misconduct, discrimination, libel, infliction of irreparable emotional harm, and impropriety by board president Carol Ann Dobson (“Dobson”) and other board members.
Petitioner asserts that, on or about September 9, 2015, her son was discriminated against by his teacher when he was asked to sit on the floor during the school day. The record indicates that petitioner brought the incident to the attention of the superintendent and the elementary school principal, Dr. Karen Gagliardi, via an email dated September 10, 2015. Petitioner asserts that the response received via email dated September 17, 2015 from principal Gagliardi was “a willful perversion of the truth” and that principal Gagliardi neglected to perform an investigation in violation of Education Law §13(1)(d). Thereafter, by email dated September 23, 2015, petitioner forwarded principal Gagliardi’s letter to Dobson together with a five-page letter in which petitioner detailed the incident which precipitated her email to the superintendent; alleged that principal Gagliardi’s response was improper, fabricated and discriminatory; raised numerous unrelated issues, including those regarding peanut and carpet allergens; and notified Dobson that the student would no longer be attending the district’s elementary school. By letter dated October 1, 2015, Dobson acknowledged receipt of petitioner’s letter and requested that petitioner notify the district of the student’s new school. The record indicates that, thereafter, several correspondences of a similar nature were exchanged between petitioner and district staff.
The record indicates that petitioner failed to provide district staff with the requested information regarding the student’s new school, as requested in Dobson’s October 1st letter. Therefore, in accordance with district policy, after the student had been absent for more than ten days without excuse and without either a formal request for withdrawal by petitioner or a request for the student’s records by another school, the district made a report of educational neglect to Child Protective Services. Petitioner argues that such report was false and that Dobson filed a false report out of retaliation. This application for removal ensued.
Petitioner asserts that the board and Dobson have failed to undertake an investigation of the incident regarding her son, condoned principal Gagliardi’s unlawful and unethical actions, treated petitioner in a discriminatory matter, and acted in violation of Title II of the Americans with Disabilities Act of 1990 by failing to perform “an immediate and impartial investigation as an (sic) ‘reasonable accommodation’ being a member of a ‘protected class’ because of her African-American race....” Petitioner seeks the removal of Dobson as well as the rest of the members of the board “if applicable.” Additionally, petitioner requests that I file an injunction against respondent to prevent further harassment, demands expungement of the libelous statements made against petitioner, demands that respondent issue a written apology to petitioner, demands that the student’s teacher be retrained with regard to the Dignity for All Students Act, demands that principal Gagliardi be terminated, demands that I order an investigation into any discriminatory conduct by the student’s teacher, and requests that respondent pay for the cost of transporting the student to his new school and for “medical bills as it pertains [to] any future irreparable psychological damage to her son’s health due to [the teacher’s] unlawful discriminatory actions.”
Respondent generally denies petitioner’s claims and argues that the application must be denied on several procedural grounds, including lack of jurisdiction and improper service.
The application must be dismissed for lack of personal service upon Dobson and the other board members and, as a consequence, for failure to join them as necessary parties. 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.
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).
The record indicates that petitioner served only the district, by personally serving its clerk. However, I note that the district is not named as a respondent. There is no indication that Dobson or any other individual board members were personally served with a copy of the notice of petition and petition, nor has petitioner demonstrated that the district clerk was authorized to accept service on behalf of the individual board members. Because petitioner’s service on the district clerk in this case did not effect personal jurisdiction over Dobson and the other individual board members, who are necessary parties, the application must be denied (Appeal of Affronti, 54 Ed Dept Rep, Decision No. 16,756; Appeal of Emerling, 51 id., Decision No. 16,352; Application of Simmons, 43 id. 7, Decision No. 14,899).
To the extent that petitioner intends to allege discrimination on constitutional grounds, I note that an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of W.Z. and A.Z., 50 Ed Dept Rep, Decision No. 16,102; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677). A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810). Therefore, to the extent that petitioner seeks relief based on such violations, her claims are dismissed.
To the extent that petitioner raises claims that do not arise under Education Law, such as defamation, I lack jurisdiction over such claims, which may be raised in a court of competent jurisdiction (Appeal of P.S., 49 Ed Dept Rep 61, Decision No. 15,958; Appeal of Federico, 35 id. 269, Decision No. 13,538). Additionally, an appeal to the Commissioners pursuant to Education Law §310 is not an appropriate forum to adjudicate claims under Title VI of the Civil Rights Act of 1964 (Appeal of Cartagena, 43 Ed Dept Rep 267, Decision No. 14,991; Appeal of Finkel, 41 id. 74, Decision No. 14,619) or the Americans with Disabilities Act (Appeal of Zlotnik and Hartman, 53 Ed Dept Rep, Decision No. 16,589; Appeal of Bd. of Educ. of City School Dist. of City of Rye, 53 id., Decision No. 16,513; Appeals of a Student Suspected of Having a Disability, 46 id. 539, Decision No. 15,588; Appeal of Mogel, 41 id. 127, Decision No. 14,636).
To the extent that petitioner requests that I order an investigation into the student’s teacher, I note that 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).
To the extent that petitioner seeks an award of monetary damages for the student’s medical bills, I note that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875). Additionally, to the extent that petitioner seeks reimbursement for the costs of transportation of the student to his new school, I find no evidence on this record that a request for transportation was filed with the district. Thus, any request for reimbursement for transportation costs is denied.
Finally, to the extent that petitioner seeks an apology, the Commissioner lacks the authority to order the board of education or any school district employee to issue an apology (Appeal of L.D., 55 Ed Dept Rep, Decision No. 16,864; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773; 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.
END OF FILE
 Petitioner also argues that respondent’s answer was untimely and, therefore, should not be considered. I note, however, that the record indicates that, by letter to my Office of Counsel dated November 19, 2015, respondent requested an extension of time to file its answer from November 23 until December 4, 2015 and that petitioner was copied on this letter. By letter to my Office of Counsel dated November 23, 2015, on which petitioner was also copied, respondent confirmed that it had been granted an extension of time to file its answer until December 4, 2015. As respondent’s answer was served on December 4, 2015, it is not untimely and, therefore, has been considered as part of the record.
 I also note that, after commencement of this appeal, petitioner commenced an action against the board of education and Dobson in U.S. District Court based on the same set of facts and seeking similar relief. Both appeals concern, or raise issues that are inextricably intertwined with, allegations of discrimination and violations of the Civil Rights Act. In the interest of judicial economy, the Commissioner of Education will not entertain an appeal while there is an action pending in another forum involving the same issues and seeking similar relief (Appeal of Campbell, 33 Ed Dept Rep 132, Decision No. 13,000; Appeal of Young, 22 id. 256, Decision No. 10,954).