Decision No. 17,618
Appeal of A.G., on behalf of his son E.G., from action of the Board of Education of the City School District of the City of Plattsburgh regarding student bullying.
Decision No. 17,618
(April 11, 2019)
Girvin & Ferlazzo, PC, attorneys for respondent, Kristine Amodeo Lanchantin and Alex S. Dahle, Esqs., of counsel
ELIA, Commissioner.--Petitioner appeals from a determination of the Board of Education of the City School District of the City of Plattsburgh (“respondent”) that certain actions directed toward his son (“the student”) did not constitute bullying or harassment pursuant to the Dignity for All Students Act (“DASA,” Education Law, Article 2). The appeal must be dismissed.
This appeal concerns the actions of a teacher employed by respondent’s district (“the teacher”) toward petitioner’s son. At all times relevant to this appeal, petitioner’s son attended respondent’s middle school. According to the record, the student was enrolled in the teacher’s advanced math class during the 2016-2017 school year.
Petitioner alleges in the petition that, during the 2016-2017 school year, the teacher “singled out” the student in class which made him “feel uncomfortable.” Petitioner alleges that the teacher made comments such as: “how are you still in my class,” “not even close,” and “maybe you should think about another math class.” Petitioner further alleges that he “verbally notified” the middle school principal of his concerns at an unspecified time.
The record contains a June 2017 email exchange between respondent’s assistant superintendent for curriculum and instruction (“assistant superintendent”) in which petitioner expressed dissatisfaction with the fact that the teacher told the student that he was not accepted into the teacher’s advanced math class before the district officially notified parents of such determination. In the email chain, petitioner did not indicate that the teacher subjected the student to bullying or harassment or include any of the allegations which petitioner presents on appeal. According to the record, the district reversed its earlier determination and enrolled the student in the teacher’s advanced math class for the 2017-2018 school year.
In an email exchange between petitioner and the assistant superintendent dated October 23, 2017, petitioner expressed his dissatisfaction at, among other things, the teacher’s “public  mocking [of the student] on several occasions and even ... accusing [the student] of cheating on an extra credit assignment.” Petitioner also stated that academic strategies identified by the assistant superintendent were “dependent on the teacher,” that he did not feel the student could avail himself of these remedies because he “was MOCKED openly by [the teacher] on a number of occasions,” and that the student was “intimidated” by the teacher, whom he described as a “bullying teacher.” Petitioner further indicated that he was “pulling” the student from the teacher’s advanced math class.
In a letter dated October 30, 2017, petitioner wrote to the middle school principal, superintendent, and other district administrators to inform them that he and his spouse were “removing” the student from the teacher’s advanced math class. Petitioner identified several complaints about the teacher in the letter, including allegations that: (1) the teacher suggested to the student that he “drop” instrument lessons for one of the two instruments he plays if he could not coordinate such lessons with the teacher’s math class; (2) after reviewing the student’s work, the teacher turned to another student and asked: “how is this kid still in my class?”; and (3) upon reviewing a difficult extra credit assignment completed by the student, the teacher remarked: “[w]here did you look that up on the internet?” Petitioner stated in the letter that he had discussed the matter with the student, and the student did not believe the teacher “was making a poor attempt at humor.” Petitioner indicated that the student was “intimidated” by the teacher and alleged that administrators were “absolute[ly] silent” during “an entire year of difficulty.” Petitioner alleged that he had previously made the middle school principal aware of his concerns, but that he had received “[n]ot one reply.”
Following receipt of this letter, the middle school principal met with the teacher, who denied the first two allegations made by petitioner in the October 30, 2017 letter. The teacher further stated that, although he “did not recall” making the third comment, he “acknowledge[d] that he ha[d] a tendency to make sarcastic comments to students, which [are] often misinterpreted by ... younger students.” The middle school principal verbally counseled the teacher and directed him to treat all students respectfully.
According to the record, petitioner, the superintendent, and the assistant superintendent met in November 2017 to discuss petitioner’s concerns.
In December 2017, the middle school principal issued a written counseling letter to the teacher “regarding his interactions with students.” Respondent further alleges on appeal that the middle school principal has met with the teacher on multiple occasions, five of which meetings included counselors, to address his “type A personality” and manner of interacting with students.
On May 31, 2018, petitioner filed a DASA complaint against the teacher. A district administrator conducted an investigation of petitioner’s claim, which included meeting with petitioner, the student and the teacher.
On June 12, 2018, the superintendent informed petitioner that the district had completed its DASA investigation and concluded that, while the teacher’s “comments were inappropriate,” his conduct did not constitute bullying or harassment within the meaning of DASA. Petitioner appealed this determination to respondent. In a written decision dated June 27, 2018, respondent upheld the superintendent’s determination. This appeal ensued.
Petitioner contends that respondent failed to inform him of the protections of DASA in response to his complaints about the teacher and failed to timely investigate his claims of bullying and harassment. Petitioner further argues that respondent’s determination that the teacher did not engage in bullying or harassment was arbitrary and capricious. Petitioner additionally alleges that respondent failed to adhere to required procedures for investigating a DASA complaint. For relief, petitioner seeks: (1) “meaningful” and “documented corrective action” against the teacher; (2) that unidentified “[a]dministrators” be “held accountable for the lack of adherence to the requirements” of DASA; and (3) that “procedures are reviewed, updated if necessary, and [that] all staff are trained in exactly how to handle cases of reported harassment of students by teachers.”
Respondent contends that the appeal must be dismissed as untimely, that its determination was neither arbitrary nor capricious, and that it followed appropriate procedures in investigating and resolving petitioner’s complaint. Specifically, respondent argues that, prior to petitioner’s May 2018 DASA complaint, it justifiably investigated petitioner’s October 2017 complaint under its “public complaint” policy, which concerns “complaints ... that require or request action” from the board.
First, I must address a procedural matter. Respondent objects to the scope of petitioner’s reply. 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 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).
Here, respondent submits an affidavit from the secretary to the superintendent in which she asserts that she mailed a copy of respondent’s June 27, 2018 determination to petitioner on June 28, 2018 by certified mail, return receipt requested. She further attests that she received a return receipt from the U.S. Postal Service showing that respondent’s determination was received and accepted by K.G., whom she identifies as petitioner’s spouse, on June 29, 2018. She additionally states that, in response to a telephone request from petitioner, she hand-delivered a copy of respondent’s determination letter to petitioner on June 29, 2018. Petitioner admits this sequence of events in his reply, but suggests that the 30-day time limitation should not run from June 29, 2018 because the secretary told him that the copy of the letter she handed him “was an unofficial copy.” Petitioner also admits that the letter was delivered by mail to his residence on June 29, 2018, but that he did not receive it because his spouse “put the letter aside” and did not show it to petitioner until July 5, 2018.
Thus, the record reflects that petitioner actually received respondent’s determination on June 29, 2018 both when the secretary hand-delivered it to him and when it was delivered by mail to his residence. I do not find petitioner’s allegations that the secretary told him the letter was “unofficial” or that petitioner’s spouse forgot to give him a letter which was delivered to his home address to constitute sufficient excuses for the delay. Accordingly, the petition was required to be served on July 30, 2018. Consequently, I find that petitioner’s service of the petition on August 2, 2018 was late, petitioner has not demonstrated a sufficient excuse for the delay, and the appeal must be dismissed as untimely.
Even if the petition were not dismissed as untimely, it would be dismissed on other grounds. First, to the extent petitioner seeks “documented corrective action” against the teacher, the appeal must be dismissed for lack of jurisdiction. Although Education Law §310 confers broad authority upon the Commissioner to review any official act or decision of local school authorities, including matters relating to the discipline of school personnel, the Commissioner lacks jurisdiction to impose discipline on district employees (see e.g. Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,236; Matter of Richardson, 24 id. 104, Decision No. 11,333; judgment granted dismissing petition to review sub nom. Raymond, et al. v. Ambach, Supreme Court, Albany County, Special Term; Cholakis, J., May 23, 1985; n.o.r.). Such employee discipline is within respondent's exclusive jurisdiction and is generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts (see e.g. Education Law §§1709(16) and (33), 3020, 3020-a; Civil Service Law §75). Therefore, I have no jurisdiction to impose discipline upon a district employee such as the teacher.
Additionally, petitioner’s request that unspecified “[a]dministrators” be “held accountable for the lack of adherence to the requirements” of DASA and board policy must be dismissed for failure to state a claim upon which relief may be granted. Petitioner has not identified the administrators to whom this request is directed and has not explained what holding administrators “accountable” would entail. Therefore, I find that this request for relief must be dismissed for failure to state a claim upon which relief may be granted.
Both petitioner’s claim seeking documented corrective action against the teacher and his claim that administrators be held accountable must be dismissed for failure to join the teacher and administrators as necessary parties. 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). Neither the teacher nor the unspecified administrators have been named as respondents or served with a copy of the petition. They would be adversely affected by an order requiring disciplinary action or other accountability measures imposed against them and, therefore, are necessary parties. Accordingly, petitioner’s claims against those individuals must be dismissed for failure to join them as necessary parties.
Petitioner has also failed to meet his burden of proving that respondent’s “procedures” should be “reviewed,” and that staff should receive instruction on “exactly how to handle cases of reported harassment of students by teachers.” In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884). Other than his allegation that respondent failed to promptly investigate petitioner’s claims of alleged bullying or harassment toward his son, petitioner has not shown that respondent’s DASA policy or procedures do not comply with DASA or that district employees require instruction concerning “how to handle cases of reported harassment of students by teachers.” The superintendent, principal, and assistant superintendent assert in affidavits that they are fully aware of their obligations under DASA, and the record reflects that respondent promptly conducted a DASA investigation upon receipt of petitioner’s May 31, 2018 DASA complaint. Therefore, petitioner has neither alleged nor proven that respondent’s DASA policies are flawed or that respondent’s officers or employees require training concerning DASA.
Nevertheless, given the nature of the allegations raised in this appeal, I am directing my Office of Student Support Services to provide guidance and technical assistance to the district in order to ensure that the district appropriately investigates all incidents of harassment and bullying.
In light of the above disposition, I need not address the parties’ remaining contentions. However, nothing herein should be construed a minimizing the serious safety, social and emotional issues raised by harassment, bullying and discrimination in public schools.
THE APPEAL IS DISMISSED.
END OF FILE
 The record does not contain a copy of this letter.
 Respondent also objects to the fact that my Office of Counsel granted an extension of time to petitioner to serve his reply, and that this was “unbeknownst to Respondent.” However, petitioner memorialized this extension in a letter dated September 7, 2018, and this letter indicates that counsel for respondent was copied. Moreover, Commissioner’s regulation §276.3(a) provides that “[t]he commissioner may permit an extension of time to answer the petition or reply to an answer upon good cause shown and upon such terms and conditions as the commissioner may specify,” and does not impose a notice requirement such as that described by respondent.
 To the extent this request could be interpreted as seeking that I impose discipline upon district employees, I lack jurisdiction to do so in an appeal pursuant to Education Law §310 for the reasons described above.