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Decision No. 17,482

Appeal of JOSEPH R. CEA, from action of the Board of Education of the City School District of the City of Watervliet, Ryan Groat as Principal, Lori Caplan as Superintendent, Kirsten Demento as Curriculum Coordinator and Mark Scully as President of the Board of Education regarding a personnel action.

Decision No. 17,482

(August 14, 2018)

Ferrara Fiorenza PC, attorneys for respondents, Heather M. Cole, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from actions taken by the Board of Education of the City School District of the City of Watervliet (“respondent board”), Ryan Groat as principal (“respondent Groat”), Lori Caplan as superintendent (“respondent Caplan”), Kirsten Demento as curriculum coordinator (“respondent Demento”) and Mark Scully as president of respondent board (“respondent Scully”) (collectively, “respondents”) regarding a personnel action.[1]  Among other relief, petitioner seeks “suspension” of respondent Scully as board president.  The appeal must be dismissed and, to the extent petitioner seeks respondent Scully’s removal, the application must be denied.

According to the record, petitioner is a tenured teacher employed by respondents’ district.  Petitioner is assigned to the district’s out-of-school suspension facility (“OSS facility”), which is located within the Watervliet Civic Center (“Civic Center”).  The Civic Center is owned by the City of Watervliet.

Respondent board has enacted Board Policy 5681, which implements the safety requirements imposed by Education Law §2801-a and 8 NYCRR §155.7.  The policy includes district-wide and building-level safety plans.  According to respondents, under the building-level safety plan for the OSS facility, the Civic Center is contacted whenever there is a drill or emergency response at the district’s elementary or junior-senior high school.  Respondent board has designated Bill Sheehy, who is not a district employee, to serve as the incident commander at the OSS facility.  In his petition, petitioner asserts that he does not question Mr. Sheehy’s competency or ability “as the Civic Center is his building to manage and maintain.”[2]

Petitioner contends that respondents conducted a lockdown drill on October 5, 2016[3] without informing him of a “newly developed” safety plan.  Although petitioner admits that Mr. Sheehy was contacted by both the elementary and junior-senior high schools, he asserts that he was not notified of the lockdown drill and Mr. Sheehy “could not leave his office due to other obligations and low staffing ....”

Petitioner reported his concerns about the manner in which the district conducted the October 4, 2016 lockdown drill to a Watervliet Teachers’ Association representative (“union representative”).  The union representative conveyed petitioner’s concerns to the union’s board of directors.

In an email dated October 20, 2016, the union representative reported the substance of his conversation with the union’s board of directors.  According to the union representative, the union “recognized that the district did follow their [sic] own protocol during the safety protocol ....”  The union representative further reported that by “calling the Civic Center, the district is, technically, notifying the building of an emergency situation.”  In response to the union’s “concerns regarding the protocol itself” - specifically, that “an e-mail could’ve been sent to [petitioner] indicating the situation” - the junior-senior high school principal (“principal”) indicated “that the district is following the safety protocol that was developed by the safety team ....”

On October 26, 2016, respondent Groat issued petitioner a counseling memorandum concerning an incident which occurred on October 7, 2016.  On that date, according to the counseling memorandum, petitioner was “heard yelling at [a student] because she was crossing the road and not using the crosswalk.”  The counseling memorandum further indicated that witnesses heard petitioner “and the young [student’s] father engage [] in an argument.”  The counseling memorandum informed petitioner that his behavior was inappropriate and directed petitioner to “demonstrate professionalism and use strategies that deescalate situations ....”  This appeal ensued.

Petitioner alleges that respondents’ policy of contacting the Civic Center instead of him directly is arbitrary and capricious.  Petitioner requests that respondents develop “an emergency plan whereby [the out-of-school suspension program] is contacted 100% of the time ... in accordance with SAVE.”  Petitioner further requests to be named “the incident commander for emergency situations at the out-of-school suspension site.”  Petitioner additionally requests “suspension and/or revocation of [the] administrative licenses of all respondents ....”  Petitioner also requests that respondent Scully be “suspen[ded]” from his position as board president.  Petitioner asserts that he has been the victim of retaliation and requests “[t]o experience no retaliation as a result of this filing.”  Finally, petitioner seeks removal of the October 26, 2016 counseling memorandum from his personnel file.

Respondents contend that the appeal must be dismissed, in part, as untimely.  Respondents further contend that petitioner lacks standing, and that the Commissioner lacks jurisdiction over some of petitioner’s claims in an appeal pursuant to Education Law §310.  Respondents argue that they acted reasonably and satisfied their legal obligations regarding emergency response planning.  Finally, to the extent petitioner seeks removal of respondent Scully, respondents argue that petitioner failed to comply with the requirements for such application pursuant to 8 NYCRR §277.1.

Petitioner asserts that respondents’ answer is untimely.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  The date upon which personal service was made upon a respondent shall be excluded in the computation of the 20-day period (8 NYCRR §275.13).  When the 20-day period ends on a Saturday, Sunday or public holiday, the answer may be served on the next succeeding business day (8 NYCRR §275.8[b]).  Here, petitioner admits that respondents’ answer was due to be served on Sunday, November 20, 2016, but faults the district for serving the answer on the following Monday, November 21, 2016 because “the US Postal Service ... operate[s] several offices on Sunday ....”  However, the plain language of 8 NYCRR §275.8(b) permits service of an answer or other pleading on the following Monday if the last day for service falls on a Sunday.  Thus, the answer was timely served and petitioner’s argument in this regard is without merit.

First, I must address two procedural matters.  Petitioner submitted a reply in this matter to which respondent objects.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, 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.

The appeal must be dismissed, in part, as outside the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310.  As indicated above, petitioner seeks the suspension and/or revocation of the “administrative licenses of all respondents.”  An appeal pursuant to Education Law §310 is not the appropriate forum to seek the revocation of a school or district administrator’s  certification (see Appeal of Williams, 57 Ed Dept Rep, Decision No. 17,355).  Such relief may only be obtained through the process set forth in Part 83 of the Commissioner’s regulations, which provides certificate holders with, among other rights, the right to a formal hearing where they may present evidence and testimony prior to revocation of a certificate (8 NYCRR Part 83). 

Additionally, there is no provision in Education Law §306 or elsewhere in the Education Law that authorizes the Commissioner to suspend a board member such as respondent Scully (Applications of Eisenkraft, 38 Ed Dept Rep 553, Decision No. 14,092).  Therefore, to the extent petitioner seeks suspension of respondent Scully, rather than his removal pursuant to Education Law §306, petitioner’s claim must be dismissed for lack of jurisdiction.

To the extent that petitioner’s request for suspension of respondent Scully as board president could be construed as an application for removal pursuant to Education Law §306, it must be dismissed on procedural grounds as petitioner did not comply with the specialized notice provision for removal applications as required by 8 NYCRR §277.1(b) (Application of Carrion, 50 Ed Dept Rep, Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253).

Respondents further argue that petitioner lacks standing to challenge its district or building-level emergency plans.  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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853). 

Here, petitioner has alleged that respondents acted arbitrarily, capriciously or unreasonably by failing to contact him during a lock-down drill on October 4, 2016.  Petitioner’s position is that it is arbitrary and capricious for respondents to implement a building-level safety plan for the OSS facility that provides for contacting Civic Center staff instead of a district employee for purposes of alerting the OSS facility about a drill or an emergency.  Petitioner alleges that he is personally affected by respondents’ actions since he is the sole district employee at the OSS facility and his own safety is impacted by the procedures in that safety plan. 

While respondents correctly point out that the October 4, 2016 drill involved lock-downs at the elementary school and junior/senior high school and did not directly affect the OSS facility, respondents have asserted that the building-level safety plan for the OSS facility provides for notification of Civic Center staff when a lock-down drill is conducted at the other schools.  Furthermore, it appears from the record that respondents would have followed the same protocol (i.e., contacting Civic Center staff) in the event of an actual emergency.  Under these circumstances, it would be untenable to await an actual emergency, and only permit petitioner to bring an appeal at that time.  Therefore, I find that petitioner has alleged sufficient facts to establish that his personal rights are directly affected by respondents’ failure to adopt procedures for notifying him, as the sole school district employee on site, when a drill or emergency occurs.  Thus, I decline to dismiss petitioner’s claims regarding respondent’s building-level safety plan and its implementation for lack of standing. 

However, petitioner has not alleged or proven that he is aggrieved by the district-wide safety plan, and thus has not established that he has standing to challenge that plan.  Therefore, to the extent petitioner challenges the district-wide safety plan, his claim is dismissed for lack of standing.

Next, the appeal must be dismissed, in substantial 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  This appeal was commenced by service of the petition on October 31, 2016; thus, claims involving actions or decisions that occurred more than 30 days prior to that date are untimely. In the petition, petitioner identifies various complaints against respondents which occurred up to a year before petitioner filed the instant appeal.  Petitioner admits in his reply that he posed these untimely allegations “solely to provide just how much [r]espondents despise [p]etitioner and this [sic] risking his safety ....”  Thus, petitioner’s claims relating to counseling memoranda issued in 2013, petitioner’s use of his personal cellphone without reimbursement prior to September 2015, the installation in September 2015 of a telephone for his use at the OSS facility that is shared with Civic Center staff, a lock-down drill conducted in November 2015, and various email exchanges, conversations and meetings that occurred in 2015 or in the spring of 2016 must all be dismissed as untimely.

With respect to petitioner’s claims relating to the building-level safety plan for the OSS facility, respondents allege that petitioner had been informed of the emergency procedures for the OSS facility and Civic Center and the specific fact that Mr. Sheehy was designated as the incident commander and contact person in the event of a drill or emergency long before October 4, 2016.  Respondents submit documents that the superintendent characterizes as an emergency evacuation plan for the OSS location, a quick reference card for emergency procedures, and the Civic Center’s evacuation procedures.[4]  Among those documents is an “Appendix D” which is captioned “Evacuation Site” and identifies Mr. Sheehy as the contact person.  These documents also identify Mr. Sheehy as incident commander of the Watervliet Civic Center. 

Respondent Demento attests in an affidavit that she forwarded a copy of the Civic Center emergency evacuation plan and a Civic Center floor plan, including Appendix D, to petitioner by email on January 4, 2014.  She further attests that, by email on February 25, 2016, she sent all the emergency evacuation plan documents to another teacher who had requested them on petitioner’s behalf.  This email chain, which is part of the record, confirms that the teacher made the request on petitioner’s behalf.  This submission similarly identified Mr. Sheehy as the contact person and incident commander.

Petitioner does not deny that he received these documents; instead, he complains that the document he sought in 2014 and 2016 was the district-wide safety plan, which he did not receive until this appeal.  Thus, the record supports a finding that petitioner was on notice that Ms. Sheehy was the contact person and incident commander as early as January 4, 2014, and his time to appeal such designation ran from that date.  Since this appeal was not commenced until more than two years after petitioner learned of Mr. Sheehy’s designations and petitioner has provided no excuse for the delay, I find that petitioner’s claims relating to the contents of the building–level safety plan and any emergency procedures adopted to implement such plan must be dismissed as untimely. 

Further, although not characterized by petitioner as such, I note that Mr. Sheehy’s designations as contact person and incident commander are not continuing wrongs.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action that results in a continuous violation of the law, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single discrete action, inaction or decision and the resulting effects are continuing but are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).  In this case, the designation of Mr. Sheehy as the incident commander and as the contact person for emergencies and drills involve discrete actions.  Moreover, petitioner has not established that the resulting effects of such designations are intrinsically unlawful.  Therefore, the continuing wrong doctrine does not apply under these circumstances.

However, petitioner’s claim challenging the issuance of the counseling memorandum dated October 26, 2016 was brought within 30 days of the action complained of and is timely.  In addition, petitioner’s complaint regarding respondents’ actions with respect to the shut-down drill on October 4, 2016, as opposed to the procedures established by respondents in the building-level safety plan, is also timely.

Turning to the merits, of petitioner’s remaining claims, petitioner argues that the factual determinations underlying respondents’ October 26, 2016 counseling memorandum were incorrect.  Petitioner argues that a witness’s statement that he cursed “is a complete fabrication,” and that he was not yelling, but merely speaking in his natural voice, which is “loud” and “projecting.”  Respondent Groat refutes these claims, explaining that he interviewed multiple witnesses, “found them to be credible,” and based his findings on the statements made by those witnesses.  Therefore, on this record petitioner has failed to show that he did not engage

in the activity described in the counseling memorandum.[5]

Petitioner further asserts that respondents issued the counseling memorandum as retaliation after petitioner exercised his right to file complaints with the New York State Division of Human Rights (“DHR”) and the Public Employment Relations Board (“PERB”).  However, petitioner presents only conclusory allegations that he was retaliated against and has adduced no facts or proof in support of this claim.  With specific respect to the DHR and PERB complaints, petitioner has not provided copies of any such complaints or any information concerning the substance of these claims.  Therefore, petitioner’s retaliation claim must be dismissed for failure to state a claim upon which relief may be granted.[6]

Petitioner next objects to the fact that respondents contacted the Civic Center, and not him, on October 4, 2016 during the lockdown drill.  According to the record, respondents have developed, in accordance with 8 NYCRR §155.17, a district-level safety plan as well as building-level safety plans for each building containing instructional units, including the OSS facility.  With respect to notification procedures for the OSS facility, in the event that there is a drill or an emergency at the elementary school or the junior/senior high school, respondents assert that the building-level plans require that the Civic Center be notified of such drill or emergency.  This is corroborated by the evidence in the record concerning the Civic Center emergency evacuation plan and the designation of Mr. Sheehy as contact person.  Accordingly, on October 4, 2016, the district conducted a drill at the elementary school and the junior/senior high school and notified Mr. Sheehy at the Civic Center.  Therefore, it appears from the record that respondents acted in accordance with their building-level safety plans for the OSS facility on October 4, 2016.  Petitioner, who seeks to challenge the procedures established in the building-level safety plans that relate to the OSS facility, has not established that respondents’ actions on October 4, 2016 violated district policy or were otherwise unlawful or improper.

Even if I had not dismissed petitioner’s claims relating to the designation of Mr. Sheehy as incident commander and contact person in the event of a drill or emergency as untimely, they would be dismissed on the merits.  Education Law §2801-a(3)(e) requires that building-level safety plans include “a definition of the chain of command in a manner consistent with the national interagency incident management/incident command system.”  This refers to the National Incident Management System (“NIMS”) established by the Federal Emergency Management Agency (“FEMA”).  A component of NIMS is the Incident Command System (“ICS”), which is described in FEMA guidance as:

a standardized approach to the command, control and coordination of on-scene incident management, providing a common hierarchy within which personnel from multiple organizations can be effective.[7]

Respondents assert that, consistent with the ICS, they designated Mr. Sheehy as incident commander, which is defined in FEMA guidance as:

The individual responsible for all incident activities, including the development of strategies and tactics and the ordering and the release of resources.  The IC has overall authority and responsibility for conducting incident operations and is responsible for the management of all incident operations at the incident site.[8]

Petitioner has not proven that the designation of Mr. Sheehy, who is not a school district employee, to serve as the incident commander and contact person is inconsistent with the ICS or otherwise in violation of any law or regulation.  Neither Education Law §2801-a nor §§155.7 and 155.17 of the Commissioner’s regulations mandate that specific individuals or employees be contacted in the event of an emergency.  Petitioner admits that Mr. Sheehy is the building manager of the Civic Center and offers no explanation as to why it would be irrational or inconsistent with the ICS for respondents to designate the building manager of a mixed-use facility that includes space leased by the school district as the incident commander and contact person. 

Clearly, there are unique challenges to exercising command and control when a school district leases a classroom in a building owned and operated by an entity other than the school district, but petitioner has failed to prove that respondents acted arbitrarily, capriciously or unreasonably by adopting a building-level safety plan for the OSS facility which, in the event of a drill or emergency, calls for the notification of a building manager who is not employed by the district.  While it may be desirable or efficacious to adopt a procedure whereby petitioner is also contacted in the event of a drill or emergency, petitioner has not proven that respondents are legally required to do so and on this record there is no basis to find respondents’ refusal to adopt such a procedure to be arbitrary or capricious.[9]

Finally, while the petition contains allegations that respondents erred by failing to remove a disruptive student from the OSS facility, petitioner seeks no relief regarding this claim.  Accordingly, this claim must be dismissed for failure to state a claim upon which relief may be granted.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE

 

[1] Respondents request that I consolidate this appeal with a subsequently filed appeal.  However, given the differing allegations in each appeal, I decline to do so (see 8 NYCRR §275.18).

 

[2] In his reply, petitioner, without naming Mr. Sheehy, alleges that “the Civic Center Staff” are employed by the United Way and not the City of Watervliet, but has submitted no proof to substantiate this assertion.

 

[3] The record indicates that the lockdown drill actually occurred on October 4, 2016.

 

[4] Respondents have not submitted as part of this record any documents identified as the building-level safety plan for the OSS facility, presumably because Education Law §2801-a(6) makes such plans confidential.

 

[5] Petitioner does not argue that this counseling memorandum was, in fact, disciplinary in nature and constituted an impermissible reprimand (Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,236; Matter of Richardson, 24 id. 104, Decision No. 11,333).

 

[6] Petitioner also requests that he “experience no retaliation as a result of this filing.”  This request for relief is inherently speculative, and the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Healey and Lindberg, 57 Ed Dept Rep, Decision No. 17,194; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

 

[7] Federal Emergency Management Agency, “NIMS Frequently Asked Questions,” available at https://www.fema.gov/nims-frequently-asked-questions (last accessed Aug. 6, 2018).

 

[8] Federal Emergency Management Agency, “ICS Resource Center,” available at https://training.fema.gov/emiweb/is/icsresource/ (click on “Glossary of Related Terms”) (last accessed Aug. 6, 2018).

 

[9] Petitioner also notes in his petition that while he originally complained that the nearest telephone was “over 100 ft. away,” respondents subsequently provided him with a readily-accessible telephone which resolved the issue of access.  While petitioner complains that he does not have a separate, dedicated phone line, Commissioner’s regulation §155.7(g)(5) merely requires that school districts provide “[a] telephone which can be used in the case of emergency ... in all buildings having pupil occupancy,” and it appears from the record that respondents have satisfied their obligation in this respect.