Application of a STUDENT WITH A DISABILITY, by his parent, for the removal of Angela Austin as Director of Pupil Personnel Services for the Westhampton Beach Union Free School District.[1]

Decision No. 17,452

(July 16, 2018)

Kevin A. Seaman, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner seeks the removal of Angela Austin (“Austin”), the Director of Pupil Personnel Services (“PPS Director”) for the Westhampton Beach Union Free School District (“respondent”).  The application must be denied.

Petitioner’s child (“the student”) has been the subject of two prior appeals pursuant to Education Law §310 (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,368; Appeal of a Student with a Disability, 57 id., Decision No. 17,367) as well as numerous decisions by impartial hearing officers and State Review Officers arising from due process complaints pursuant to the Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law.

Petitioner asserts that, during a meeting of respondent’s Committee on Special Education (“CSE”) in April 2017, the CSE “unanimously” approved the placement of the student into an educational program within respondent’s district.  However, petitioner asserts that the PPS Director “unilaterally” overturned the CSE’s recommendation.  Petitioner further asserts that the PPS Director “professed” that the student’s individualized education program (“IEP”) should not be “aligned” with the general education curriculum and, instead, should be “aligned” with a “life skills” and/or “functional academic” curriculum.  Petitioner claims that New York State does not recognize such curricula.  Petitioner also claims that the PPS Director violated the law and/or or neglected her duty when, during a CSE meeting on March 5, 2018, she recommended that the student’s “learning standards should be based upon a ‘life skills’ and/or ‘functional academics’ curriculum.”  Petitioner seeks the PPS Director’s removal from her position based upon these alleged violations of law and/or neglect of duty. 

Respondent contends that the application must be denied, in part, as untimely.  Respondent further claims that the application fails to name the PPS Director in the caption of the appeal and that the PPS Director is a school district employee who is not subject to removal under Education Law §306.

Petitioner’s application for removal of the PPS Director must be denied for failure to state a claim upon which relief may be granted.  Education Law §306 authorizes the Commissioner, after a hearing, to remove school officers under appropriate circumstances.  For purposes of §306, “school officers” include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or “other school officer[s]” (Appeal of Passer, 57 Ed Dept Rep, Decision No. 17,274).  A director of pupil personnel services, however, is a school employee, and is not a school officer (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898).  Therefore, the PPS Director is not subject to removal under Education Law §306 and the application must be denied.

The application must also be denied for failure to name the PPS Director in the caption of the appeal.  As noted above, the caption in petitioner’s application identifies the “Westhampton Beach Union Free School District” as the sole respondent.  Petitioner’s failure to clearly name the PPS Director in the caption and thereby provide notice that she needed to respond to the application or face removal is a fatal flaw warranting denial of the application (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,387; Appeal of Hadden, 57 id., Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).

The application must further be dismissed, in part, 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).  Here, petitioner complains of actions allegedly taken by the PPS Director in April 2017, which is 11 months prior to the commencement of the instant petition.  In the petition, petitioner asserts that he “delayed filing” the instant application because he “needed to assert various other forms of litigation against ... respondent ... at such time.”  I do not find this to be a valid justification for petitioner’s delay in bringing the instant application.  Therefore, any claims pertaining to an alleged CSE meeting in April 2017 are untimely and must also be dismissed on this basis.

Finally, while petitioner purports to also bring this appeal pursuant to Education Law §310, the only relief he seeks is removal of the PPS Director.  Therefore, to the extent petitioner raises claims under Education Law §310, such claims must be dismissed for failure to state a claim upon which relief may be granted.

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

THE APPLICATION IS DENIED.

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