Decision No. 17,580
Decision No. 17,580
(February 4, 2019)
Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Elizabeth A. Ledkovsky, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the action of the Board of Education of the Rondout Valley Central School District (“respondent”) regarding her complaints that district staff violated the Dignity for All Students Act (“DASA”). The appeal must be dismissed.
At the outset of the 2017-2018 school year, and at the time of the incidents that are the subject of this appeal, petitioner’s child, A.L.M.-V. (the “student”), was enrolled in 8th grade in respondent’s junior high school. However, the record indicates that February 27, 2018 was the student’s last day attending school in respondent’s district.
According to respondent, petitioner began to contact respondent’s junior high school principal (“principal”) regarding concerns she had about the student’s social studies class on or about November 2, 2017 and the principal proposed to resolve those concerns by placing the student in a different social studies class.
The record indicates that petitioner and/or K.D.A. communicated with the principal via email from November 2, 2017 until November 6, 2017 regarding the proposed schedule change. By email dated November 6, 2017, K.D.A. wrote to the principal and requested that the principal not meet with the student or make any changes to her schedule. Attached to the email was a Dignity Act Incident Reporting Form (“DASA complaint”), dated November 6, 2017, completed by K.D.A. in which he alleged that the social studies teacher is “[a]llowing laughter at student injuries;” “[e]nabling student-student bullying;” “[e]ncouraging racism, sexism, [and] hate speech;” and “[b]laming the victim in discussions with administration.” K.D.A. further alleged that the discussions about changing the student’s schedule “discriminate her [sic] from making purely educational decisions by attempting to remove the victim from the situation without addressing bullying at all ....”
By email dated November 7, 2017, the principal responded to K.D.A.’s email stating that he would contact K.D.A. after the DASA investigation, and that with respect to the student’s schedule change, “the request has come from more than one teacher and is not solely based on issues regarding other students.” That same day, K.D.A. responded to the principal’s email and copied the coordinator. Attached to the email was a second Dignity Act Incident Reporting Form, dated November 7, 2017, completed by K.D.A. in which he alleged that when the student asked to move her seat because other students were talking and causing distractions, a teacher aide initially moved her to the other side of the room and when the other students continued talking, moved her again, this time closer to the other students. He alleged that when the student complained again, the teacher aide “glared” at the student. K.D.A. further alleged that the teacher aide’s conduct was in retaliation for the November 6, 2017 DASA complaint against the student’s social studies teacher.
By email dated November 9, 2017, the principal wrote to petitioner and K.D.A. and reported that, “[a]fter interviewing 23 students, including [the student], and [two] teachers the findings to the [sic] both DASA reports ... were both found to be unfounded [emphasis omitted].”
By email dated November 12, 2017, petitioner wrote to the principal regarding concerns she had about the changes to the student’s schedule, specifically, that the student wanted her social studies teacher to remain the same, citing concerns about the amount of time needed to travel between classes. The same day, the principal responded to petitioner’s email and stated that the DASA complaint filed against the student’s social studies teacher included “numerous heavy accusations, non [sic] of which were proven to be even close to being true ....” He further stated that he would “not subject any teacher to such abuse and false allegations,” and that the student’s social studies teacher would change effective “tomorrow morning and will be in effect till the end of the school year.”
Thereafter, petitioner and K.D.A. began communicating with the coordinator and requested “all documentation regarding the investigation of these DASA complaints.” The coordinator responded that she was concerned about the “confidentiality of student names and information” that would be contained in the requested documentation and that she would consult with the district office. She also advised petitioner and K.D.A. of their right to appeal the DASA complaint decisions.
By email and letter dated November 16, 2017, petitioner and K.D.A. appealed the principal’s findings on the DASA complaints dated November 6 and 7, 2017, to respondent’s superintendent. By email dated November 16, 2017, the superintendent wrote to petitioner and advised that the coordinator would review the reports and the principal’s responses. In her affidavit, the coordinator indicates that, in response to the appeal, she contacted petitioner on Friday, November 17, 2017 and arranged to meet with her on Monday to “hear out her concerns.” She also states that, via email dated November 19, 2017, petitioner “sent [her] a lengthy e-mail, cancelling [the] meeting.” Finally, the coordinator states that:
[u]pon receipt of this email, I realized that an independent agency would be better equipped to conduct an unbiased review of the determinations challenged by the [p]etitioner, so I contacted  Ulster BOCES to request their review of the case. I advised [p]etitioner of this fact on Monday, November 20, 2017 via an email ....
Thereafter, by email dated November 20, 2017, petitioner submitted two Dignity Act Incident Reporting Forms and supporting documentation to the coordinator. One report alleged that an “adult destroyed evidence pertinent to an ongoing appeal ....” Specifically, petitioner alleged that information, such as grades and “submissions,” that were previously available on the parent portal and Google classroom were currently “blank” or read “Missing!” The other report alleged that unknown suspects, “likely building/district admin[istration],” tampered with the student’s report card. There is no evidence in the record indicating that the district made a determination regarding the allegations in the DASA complaints dated November 20, 2017. In its answer, respondent denies the allegations made in those DASA complaints and indicates that the reports and supporting documentation were submitted to an independent investigator at Ulster BOCES.
By letter dated February 23, 2018, the director of adult education of the Ulster BOCES wrote to respondent and stated that “[b]ased on the interviews of students and staff, [she] would concur with the district’s decision that the complaints were unfounded.” The letter included “recommendations  offered for consideration by the district.” This appeal ensued.
Petitioner alleges that the findings issued by Ulster BOCES are “unclear” as to: “the scope of the investigation,” “what evidence was provided,” and “when [respondent] submitted the investigation request and its associated materials.” Petitioner also alleges that the findings issued by Ulster BOCES that the reports “were unfounded appears to be in direct disagreement with their recommendations to [respondent].” As relief, petitioner requests “the immediate temporary suspension of any parties deemed responsible for the dysfunction of this State-mandated complaint process until a proper investigation is completed,” that “the appropriate consequences of accountability be visited upon those individuals deemed responsible by a thorough investigation ...” and that “inappropriate behavior, standards and practices” occurring in respondent’s district “be ended.” Petitioner also requests a determination that the DASA complaints filed by petitioner and K.D.A. in November 2017 are “truthful and valid.”
Respondent argues that, to the extent the petition asserts the rights of K.D.A., it should be dismissed because petitioner lacks standing to bring an appeal on his behalf. Respondent also argues that, to the extent petitioner appeals determinations made by district officials in “November, [sic] 2017,” the appeal must be dismissed as untimely. Respondent further argues that the petition should be dismissed for failure to join Ulster BOCES as a necessary party, as moot, for failure to meet the burden of proof, and because petitioner seeks remedies beyond the Commissioner’s authority.
There are several procedural issues that must be addressed. First, respondent objects to petitioner’s May 15, 2018 letter, which appears to be intended as a reply, on several grounds, including lack of proper verification, lack of proper service, and as “improper” and “unpersuasive.” Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal be verified. Respondent is correct that the reply, which is a pleading, does not include a verification in the form prescribed by 8 NYCRR §275.6. In this case, the reply includes petitioner’s notarized signature at the end, but does not include any language attesting to the truth of the facts contained therein. Merely notarizing a signature in a pleading does not constitute verification of that pleading (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,388; Appeal of J.L., 41 id. 62, Decision No. 14,615; Appeal of Nocerino, 40 id. 244, Decision No. 14,472). Because the reply does not include any language attesting to the truth of the factual allegations, I find that petitioner’s reply is not properly verified (cf., Appeal of A.L.P., 43 Ed Dept Rep 320, Decision No. 15,006 [petition which included language attesting to the truth of the allegations coupled with a notarized signature substantially complied with the verification requirement of 8 NYCRR §275.5]). Therefore, I have not considered petitioner’s reply in deciding this appeal.
Respondent argues that petitioner lacks standing to bring this appeal on behalf of K.D.A. 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). While petitioner has standing to bring this appeal on behalf of the student, respondent is correct that petitioner lacks standing to assert the rights of others (see e.g. Appeal of Walker, 53 Ed Dept Rep, Decision No. 16,609; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Therefore, to the extent petitioner seeks relief on behalf of K.D.A., the appeal is dismissed for lack of standing.
Respondent contends that, to the extent petitioner appeals determinations made by district officials in “November, [sic] 2017,” the appeal is 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).
The record indicates that, on November 9, 2017, the principal issued a decision regarding the allegations included in Dignity Act Incident Reporting Forms dated November 6 and 7, 2017 and that petitioner appealed that determination to respondent’s superintendent on November 16, 2017. The record also indicates that while petitioner’s appeal was still pending, respondent requested that Ulster BOCES “conduct an unbiased review of the determinations challenged by the [p]etitioner.” In an email dated November 20, 2017, the coordinator informed petitioner of the BOCES’ review and promised to notify petitioner when the BOCES’ findings were received. Ulster BOCES conducted the review as requested, and communicated its determination to respondent in a letter dated February 23, 2018. The coordinator forwarded the letter from Ulster BOCES to petitioner by email dated March 8, 2018. There is no evidence in this record that the superintendent ever issued a final determination of petitioner’s appeal and both parties appear to assume that the Ulster BOCES determined petitioner’s appeal. Petitioner’s affidavit of service indicates that the petition was served on March 15, 2018, which is less than 30 days after petitioner’s receipt of the findings and recommendations of Ulster BOCES in the letter of February 23, 2018. Under these circumstances, I decline to dismiss the appeal as untimely with respect to petitioner’s claims regarding the November 6 and 7, 2017 DASA complaints.
Similarly, I reject respondent’s argument that petitioner’s claims relating to the November 20, 2017 DASA complaints must be dismissed as untimely. The subject line of the November 23, 2017 letter from Ulster BOCES reads: “Review of DASA reports 11/06/17 and 11/07/17 and District Response” and does not reference the DASA complaints dated November 20, 2017. However, respondent affirmatively states that it forwarded those reports and supporting documentation to Ulster BOCES. Furthermore, those two complaints were addressed by Ulster BOCES in one of its recommendations, though it is not entirely clear that Ulster BOCES determined those DASA complaints to be unfounded, since there is no reference to petitioner’s retaliation claims. To the extent that respondent argues that petitioner’s claims related to the DASA complaints dated November 20, 2017 are untimely, I decline to dismiss the appeal on such ground. If, as respondent contends, Ulster BOCES rendered a determination on behalf of respondent on the November 20, 2017 DASA complaints in its November 23, 2017 letter, the appeal was commenced within 30 days of petitioner’s receipt of that determination and is timely. Even if I were to find that Ulster BOCES’ determination of February 23, 2018 did not encompass a finding regarding the DASA complaints dated November 20, 2017, the record indicates that respondent failed to issue a decision resolving those DASA complaints, based on the recommendation of Ulster BOCES. Therefore, this precludes a determination of whether this appeal was commenced in a timely manner. Under the circumstances, I decline to dismiss the appeal as untimely.
Respondent also contends that the appeal should be dismissed for failure to join Ulster BOCES as a necessary party. 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). Respondent argues that “this [p]etition can only be understood as a response to the Ulster BOCES report ...” and contends that “[t]he report was not created by the [d]istrict ....” DASA (Education Law §13) provides, in part, that respondent shall have policies, procedures and guidelines that “require the principal, superintendent or the principal's or superintendent's designee to lead or supervise the thorough investigation of all reports of harassment, bullying and discrimination ....” In this case, an initial investigation was conducted by the district, and after an appeal was taken to the superintendent, respondent requested that Ulster BOCES review the evidence the district had collected and the district’s findings based on that evidence. Ulster BOCES’ findings were completed at the request of the district, and under the district’s policies the party responsible for making the determination on the appeal was the superintendent. Whether I assume that Ulster BOCES was acting as a “designee” of the district and conducting a further investigation or was serving in an advisory capacity to inform the superintendent’s decision on appeal, I am not persuaded that Ulster BOCES’ rights would be adversely affected by a determination in favor of petitioner. No relief is sought against Ulster BOCES. Ulster BOCES merely confirmed the district’s findings that the DASA complaints were unfounded and made some additional recommendations. Ultimately, it was the superintendent’s responsibility to decide the appeal. Thus, I decline to dismiss the appeal for failure to join Ulster BOCES.
The appeal must be dismissed, in part, 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937). The petition indicates that February 27, 2018 was the student’s final day attending school in respondent’s district. Thus, because the student no longer attends school in respondent’s district, no meaningful relief can be granted to the student relating to the alleged harassment and bullying and the alleged acts of retaliation (see Appeal of J.S., 58 Ed Dept Rep, Decision No. 17,509). Accordingly, petitioner’s request for a declaration that the DASA complaints and appeal filed in November 2017 are “truthful and valid,” which essentially requests that I overturn the district’s determination, would be advisory under the circumstances and 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). Accordingly, that claim is moot and must be dismissed.
Petitioner’s remaining claims must be dismissed on other grounds. Petitioner also requests “immediate temporary suspension of any parties deemed responsible for the dysfunction of this State-mandated complaint process until a proper investigation is completed.” In a related claim, petitioner requests that “[t]he appropriate consequences of accountability be visited upon those individuals deemed responsible by a thorough investigation into said complaints, appeals, etc.”
To begin with, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).
Moreover, to the extent petitioner is requesting that I discipline tenured school employees, the appeal must be dismissed for failure to state a claim (see e.g. Appeal of M.B. and M.B., 56 Ed Dept Rep, Decision No. 17,044). To dismiss or discipline a tenured employee, charges must be instituted by the board of education pursuant to Education Law §3020-a. The Commissioner has no authority to order the suspension or termination of tenured employees for the reasons alleged absent a §3020-a hearing (see Appeal of S.S., 58 Ed Dept Rep, Decision No. 17,492). A board of education has broad discretion to determine whether to bring disciplinary proceedings against tenured employees (Appeal of Lamont, 49 Ed Dept Rep 374, Decision No. 16,054; Appeal of Carney, 33 id. 430, Decision No. 13,103). To the extent petitioner requests that other school employees be disciplined or dismissed, I have previously held that the board of education has the sole authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner (see e.g. Appeal of S.S., 58 Ed Dept Rep, Decision No. 17,492; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773).
In any case, petitioner has not named any school officer or employee as a party in the petition or personally served the petition upon any individual school officer or employee. Since any such school officer or employee would be adversely affected by a suspension or other disciplinary action, they are necessary parties and any claims against them must be dismissed for failure to join them as necessary parties.
While I am constrained to dismiss the appeal for the reasons described above, I am compelled to make observations on this record. Respondent’s policy 0115, Student Harassment and Bullying Prevention and Intervention, ambiguously states that if one of the parties disagrees with the results of an investigation “they can appeal in accordance with the regulations that accompany this policy.” There are no regulations attached to the copy of district policy 0115 submitted with the answer, however.
In its answer, respondent states that it is committed to offering its students an educational environment that is free of harassment, bullying or discrimination and refers to district policy 1410, Public Complaints, and district regulation 3230R.1, Anti-Discrimination Complaint Guidelines. It appears that respondent was handling, or attempting to handle, the matters at issue in this appeal in accordance with policy 1410, Public Complaints. However, neither district policy 1410 nor district regulation 3230R.1 are among the district policies cross-referenced in district policy 0115. The record includes emails from respondent’s board president to petitioner which attach the public complaint policy and state that:
[w]ith DASA complaints, there is an appeals process. Initially, the building principal completes an investigation. If the findings are not satisfactory to you, the next step is for the [s]uperintendent to investigate. If again, the findings are unsatisfactory, the appeal would then go to the full BOE.
Assuming, arguendo, that district policy 1410 is the regulation that accompanied district policy 0115, such policy clearly provides for an appeal to the superintendent and an appeal to the board of education. The record in this appeal indicates that petitioner appealed the principal’s determination to the superintendent and that the superintendent initially assigned the review of the principal’s determination to the coordinator, who then requested review by Ulster BOCES. However, there is no evidence in this record that the superintendent ever issued a determination on petitioner’s appeal, or advised petitioner of her right to appeal to the board of education.
Similarly, to the extent that respondent contends that it was following the process established in 3230R.1, Anti-Discrimination Complaint Guidelines, I cannot conclude on this record that it did so. For example, the regulation refers to an initial informal complaint process which is then elevated to a formal complaint process which requires a decision from “the complaint officer” within fourteen days. On this record, it is not clear that the DASA coordinator is “the complaint officer.” Assuming, arguendo, that she is, the complaint officer is supposed to inform the superintendent of the investigation so that the superintendent can issue a finding. However, on this record, the appeal went to the superintendent who designated the coordinator to conduct the review. The appeal was then referred to Ulster BOCES for review, and there is no proof that the superintendent ever made any findings after receipt of the letter dated February 23, 2018 from Ulster BOCES.
Respondent has not cited to any provision in its district policies that would authorize the superintendent to delegate his or her authority to decide an appeal to a third party, such as a BOCES. Seeking review by an impartial outside entity may be laudable, but respondent’s policies make the superintendent the decision-maker on appeal, with a right to a further appeal to the board of education. The superintendent needed to make a determination on petitioner’s various appeals after receipt of Ulster BOCES’ recommendations, and to inform petitioner of her right to appeal such determination to the board of education.
What this record shows is that respondent’s procedures relating to the handling of complaints of bullying and harassment, particularly with respect to appeals from initial findings that a DASA complaint is unfounded, are convoluted and extremely unclear.
Therefore, I admonish respondent to review its policies and procedures relating to DASA complaints to ensure that parents/guardians/students can understand the rights afforded to them and receive due process and to adhere to its policies and decide all DASA complaints and appeals properly presented to it in accordance therewith.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The record indicates that A.L.M.-V. is petitioner’s child.
 The record indicates that K.D.A. is an adult with whom petitioner resides.
 The record includes various descriptions of K.D.A.’s relationship to the student. For example, the petition refers to him as her “not legally sanctioned stepfather.” The record includes a Dignity Act Incident Reporting Form that he completed, in which he identifies himself as the student’s “stepfather.” In an affidavit submitted with this appeal, respondent’s executive director of curriculum and instruction and DASA coordinator (“coordinator”) states that petitioner currently resides with K.D.A., but “has no legal relationship with him” and that K.D.A. “likewise, has no legal relationship to [the student].”
 The Dignity Act Incident Reporting Form identifies the staff member involved by name and as a “teacher,” but does not include any other details concerning the staff member’s assignment. The record indicates that the “teacher” referred to in the Dignity Act Incident Reporting Form dated November 7, 2017 was a teacher aide who worked in the student’s social studies classroom.
 The record indicates that these records were provided to petitioner on November 22, 2017.
 The form identifies the student’s former social studies teacher, the principal and the superintendent as “suspects” and states that they “are the only possibilities [with] a vested interested in destroying evidence.”
 An affidavit from the coordinator indicates that she immediately investigated the allegations in the reports dated November 20, 2017 and that on November 21, 2017, the principal provided her with a “detailed, bullet list of factors that contributed to the temporary problems [p]etitioner experienced in viewing [the student’s] grades on the [i]nternet.”
 The determination and recommendations were communicated to petitioner in an email from the coordinator dated March 8, 2018.
 The record includes a memo from the principal to the coordinator and superintendent purporting to explain that “temporary problems with [p]etitioner’s access to her child’s online grade reports were due to technical errors arising from a combination of circumstances ....” However, the record does not include communication of the determination to petitioner.