Appeal of CATHERINE M. CARLSON from action of the Board of Education of the Rochester City School District regarding a personnel matter.

Decision No. 18,304

(July 17, 2023)

Adrian G. Neil, General Counsel, attorneys for respondent, Okeano N. Bell, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Rochester City School District (“respondent” or “board”) to suspend her employment.  The appeal must be dismissed. 

At all relevant times, petitioner was employed as a librarian by the district.  Petitioner alleges that on October 6, 2022, she witnessed a district staff member, P.M., abuse a minor child.  Petitioner reported the alleged incident to her supervisor (the principal) and several other district employees.  The parties’ versions of events vary thereafter, but it appears that an altercation ensued between petitioner and the principal that resulted in petitioner being placed on paid leave.  The district contends that petitioner put her hands on the principal and submits photographic evidence of building surveillance in support thereof.  This appeal ensued.

Petitioner contends that she was placed on leave in retaliation for reporting child abuse.  Petitioner requests that respondent impose a fine, request a written apology, and/or impose discipline upon all district employees to whom the alleged abuse was reported.  Petitioner additionally requests that respondent notify the family of the minor child of the alleged abuse.[1]

Respondent argues that the appeal must be dismissed as untimely and for lack of jurisdiction over the district respondents.  On the merits, respondent argues, among other things, that petitioner has failed to state a claim for which relief may be granted.

First, I must address a preliminary matter. Petitioner’s reply contains new information and claims that were not raised in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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 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).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of D.B., 59 Ed Dept Rep, Decision No. 17,807; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).

The actions that form the basis of petitioner’s appeal occurred on October 6, 2022, when petitioner was placed on administrative leave.  Thirty days from this date, accounting for weekends and holidays, is November 7, 2022.  However, petitioner’s first attempt to serve the petition upon the respondent was not made until November 9, 2022.  In addition to being two days late, this petition was never filed with the Office of Counsel as required by § 275.9 of the Commissioner’s regulations. 

Thereafter, on or around February 24, 2023, petitioner attempted to serve the board with another copy of the petition.  By letter dated March 6, 2023, the Office of Counsel returned this submission to petitioner as it lacked the notice required by Commissioner’s regulations section 275.11.  The letter indicated that if she served a corrected petition within two weeks, the appeal would be deemed, for the purposes of the 30-day time limitation, to have been initiated on the day a copy of the petition was personally served on respondent.  Petitioner complied with these instructions; thus, the date of service related back to February 24, 2023, which is over three months late.

While petitioner raises general assertions of alleged neglect on the part of her attorney, this claim concerns an issue of professional responsibility that is outside the scope of this appeal.[2]  Moreover, petitioner’s own unfamiliarity with the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of D.B., 59 Ed Dept Rep, Decision No. 17,807; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  Lastly, petitioner does not identify any good cause that would excuse this delay (see 8 NYCRR 275.16).  Accordingly, the appeal must be dismissed as untimely (e.g., Appeal of Schlesinger, 61 Ed Dept Rep, Decision No. 18,128; Appeal of S.H., 59 id., Decision No. 17,691).

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

THE APPEAL IS DISMISSED.

END OF FILE