Appeal of WILLIAM KING MOSS III and SAMUEL D. TEAGUE from action of the Board of Education of the Brentwood Union Free School District; superintendent Richard Loeschner; trustees Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri and substitute appointees Virginia Brunner, Crystal Demma, Cindy Canales, Wendy Escobar Bardales, Katherine Escobar Slavador, Ashley Gallienne, Adriana Gomez, Laura Haggerty, Allison Kollmer, Lindsey Lorefice, Lisa Martin, Shirley Mathis, Lauren Nostro, Adina Raso, Andrea Zuart and “John/Jane Doe” 1 through 27 regarding a personnel matter and application for the removal of Richard Loeschner as superintendent and Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri.

Decision No. 18,106

(April 4, 2022)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Candace J. Gomez, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal from action of the Board of Education of the Brentwood Union Free School District (the “board”); Richard Loeschner as superintendent; Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri as trustees (“trustees”) (collectively, “respondents”) concerning the hiring of substitute appointees Virginia Brunner, Crystal Demma, Cindy Canales, Wendy Escobar Bardales, Katherine Escobar Salvador, Ashley Gallienne, Adriana Gomez, Laura Haggerty, Allison Kollmer, Lindsey Lorefice, Lisa Martin, Shirley Mathis, Lauren Nostro, Adina Raso and Andrea Zuart (the “substitute teachers”).[1]  Petitioners additionally seek removal of the superintendent and trustees from office.  The appeal must be dismissed, and the application must be denied.

On September 17, 2020, the board appointed the substitute teachers to substitute teaching positions.  This appeal ensued.  Petitioners’ request for interim relief was denied on October 26, 2020.

Petitioner Teague maintains that he would have applied for one of the positions at issue, which he describes as “excessed teachers to permanent substitute []” positions, if they were advertised and posted in accordance with board policy.  Petitioner Teague further argues that respondents violated his civil rights and right to equal employment.  Petitioners claim that respondents engaged in unlawful hiring practices that favored less qualified white candidates over more qualified African American candidates.  Petitioners also argue that the substitute teachers did not sign teaching contracts or take oaths of office prior to commencing their service in the district.  Petitioners request the removal of the superintendent and trustees.  Petitioners also request the termination of the substitute teachers’ employment and appointment of a distinguished educator to the district.

Respondents argue that the petition must be dismissed, in part, as untimely and for lack of standing.  Respondents further contend that petitioners’ removal application must be dismissed for lack of the notice required by 8 NYCRR 277.1 (b).  Respondents maintain that they complied with board policy, that the substitute teachers took the required oaths of office, and that the substitute teachers were not required to sign teaching contracts. 

Petitioners’ application for removal of school officers must be denied for lack of the required notice.  Section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application (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).  Thus, a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioners’ application lacks the required notice and, thus, must be denied.

The appeal must also be dismissed as untimely to the extent that petitioners raise claims occurring before 30 days prior to the commencement of the instant appeal.  An appeal to the Commissioner must be commenced within 30 days from the decision or 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).  Several claims raised by petitioners occurred between 2017 and August 2020.  To the extent petitioners seek redress for such allegations, the claims are untimely and will not be addressed herein (see Appeal of Moss, 60 Ed Dept Rep, Decision No. 17,952; Appeal of Cea, 58 id., Decision No. 17,483).

I must also dismiss petitioners’ claims of employment discrimination as outside the scope of an appeal to the Commissioner pursuant to Education Law § 310 (see e.g. Appeal and Application of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001 [petitioners’ claims “such as the disparate impact of hiring practices like ‘word of mouth’ referrals ... more appropriately resolved by a fair employment practice agency or a court of competent jurisdiction”]); Appeal of T.A., 58 id., Decision No. 17,443 [appeal to Commissioner not appropriate forum to adjudicate disparate impact claims arising under the Civil Rights Act of 1964]; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879 [appeal to Commissioner not the proper forum for Title VII discrimination claim]).

Petitioners’ remaining claims must be dismissed for failure to meet their burden of proof.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).  Petitioners assert, for example, that the substitute teachers did not take oaths of office or sign employment contracts but submit no proof thereof.  Without any proof, or explanation as to how or why they were unable to obtain proof, petitioners’ claims must be dismissed (see Application of Moss, 60 Ed Dept Rep, Decision No. 17,965).

Finally, respondents request certificates of good faith (see Education Law § 3811 [1]).  Such certification is solely for the purpose of authorizing the board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in the statute.  It is appropriate to so certify unless it is established on the record that the requesting board trustee(s) acted in bad faith (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Appeal of Berger, 56 id., Decision No. 16,996; Appeal of Fletcher and Ferguson, 55 id., Decision No. 16,901).  Since there has been no finding that the individual respondents acted in bad faith, I hereby certify solely for the purpose of Education Law § 3811 (1) that the individual respondents are entitled to the requested certification.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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