Application of G.-J.F., on behalf of himself as a taxpayer and his children, C.F. and A.F., for the removal of Elizabeth A. Silva as a member of the Board of Education of the Riverhead Central School District.

Decision No. 17,545

(December 3, 2018)

Ingerman Smith, LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel

ELIA, Commissioner.--Petitioner, a district resident and taxpayer, seeks the removal of Elizabeth A. Silva (“Silva”)[1] from her position as a member of the Board of Education of the Riverhead Central School District (“respondent board” or “respondent”).  The application must be denied.

At that time and through the date this appeal was commenced, Silva was employed as a special education teacher by the Eastern Suffolk Board of Cooperative Educational Services (“BOCES”).  On May 15, 2018, Silva was elected to respondent board.

On March 27, 2018, respondent board adopted a Code of Ethics which provided that “[it] is a conflict of interest for a Board member, officer or employee to benefit personally from contracts made in their official capacity.”  The Code of Ethics defined the term “contract” to include:

any claim or demand against the District or account or agreement with the District, whether expressed or implied which exceeds the sum of $750.00 in any fiscal year.

Petitioner asserts that on May 22, 2018, Silva voted on contracts between respondent and the BOCES amounting to approximately $13 million dollars.

Petitioner contends that respondent board’s Code of Ethics prohibits Silva from voting on any contracts with the BOCES given her employment with said BOCES and her position as a member of respondent board.  Petitioner also requests that I render a determination that the Code of Ethics applies to members of respondent board who are also employed by the BOCES, and that I determine that a conflict of interest exists in this matter “by way” of a BOCES employee serving as a member of respondent board.

Respondent asserts that petitioner’s application must be denied for improper service and for failure to properly join Silva because she never received the proper notice under §277.1(b) of the Commissioner’s regulations.  Respondent also argues that petitioner failed to state a cause of action for which relief may be granted because Silva’s employment with the BOCES did not create a conflict of interest prohibiting her from voting on contracts between respondent and the BOCES.

First, I must address a procedural matter. 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).  In petitioner’s reply, he makes several assertions that are outside the scope of the petition and/or that do not respond to new material or affirmative defenses in the answer, including but not limited to, that the district and respondent board have created a failing academic environment and have aided and abetted fraud.  He also appears to seek the removal of all of the members of respondent board and asserts that he has filed seven legal Notices of Claim to which the district and board have not responded.  Since these assertions were not made in the petition and do not respond to affirmative defenses in the answer, I have not considered these new allegations and requests for relief contained within petitioner’s reply.

I also find that petitioner has failed to properly join Silva because she did not receive the required notice under §277.1(b) of the Commissioner’s regulations.  Section 277.1(b) of the Commissioner’s regulations requires that a notice of petition specifically advise a respondent that an application is being made for his or her removal from office pursuant to Education Law §306.  A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 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).  Since petitioner did not provide Silva with the proper notice required by §277.1(b) of the Commissioner’s regulations, petitioner failed to secure jurisdiction over Silva.  As a result, petitioner’s application for her removal from respondent board must be denied.

To the extent petitioner requests a determination that the Code of Ethics applies to all members of respondent board who are employees of the BOCES, I note that 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 He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).

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

THE APPLICATION IS DENIED.

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