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Decision No. 12,592

Appeal of ARTHUR GOTTLIEB from actions of the Board of Education of the Massapequa School District regarding his son, Daniel Scott Gottlieb.

Decision No. 12,592

(October 14, 1991)

Van Nostrand & Martin, Esqs., attorneys for respondent, LeRoy Van Nostrand, Jr., Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges certain actions of Massapequa School District administrators regarding his son, Daniel Scott Gottlieb, and asks that I issue an order directing respondent to provide a reason in writing for its actions, copies of all school records relating to Daniel, respondent's policy concerning children on medication, and respondent's procedures for addressing suspected cases of child abuse. The appeal must be dismissed.

Daniel attends the fourth grade at the Birch Lane School in respondent district. On November 16, 1990, the school guidance counselor, Beverly Taylor, interviewed Daniel in her office. This interview was prompted by a conversation Ms. Taylor had with the school nurse, Barbara Kaufman, in which Ms. Kaufman advised Ms. Taylor that Daniel was taking Ritalin to treat attention deficit disorder.

During Ms. Taylor's interview with him, Daniel revealed specific information which caused Ms. Taylor to believe that Daniel might be the target of abuse by petitioner. Ms. Taylor referred Daniel's case to the school principal, Margaret Baffa, who evaluated the information and notified the New York Central Register for Child Protective Services ("CPS)". On November 20, 1990, a CPS investigator interviewed Daniel and his sister in Ms. Baffa's office. Ms. Baffa filed a written report with CPS on January 9, 1991.

Beginning on November 23, 1990, petitioner wrote a series of letters to the superintendent, the president of the board of education and Ms. Baffa demanding that respondent disclose why Ms. Taylor had met with Daniel, produce copies of Daniel's files (including notes purportedly taken by Ms. Taylor during her meeting with Daniel), and castigating respondent for its handling of the situation. Respondent responded in four separate letters and met with petitioner on at least three occasions. When the matter

could not be resolved to petitioner's satisfaction, he commenced this appeal pursuant to '310 of the Education Law.

As a threshold matter, two of petitioner's claims for relief are moot. First, it is apparent from the exhibits annexed to the petition that respondent has already provided petitioner with a copy of its policy regarding child abuse. Moreover, respondent has told petitioner on several occasions that it is its policy to monitor children receiving medication. This was further confirmed in writing in respondent's answer.

With respect to petitioner's request for Daniel's school records, respondent has apparently given petitioner copies of all records relating to Daniel, including a copy of the report made to CPS. Although petitioner alleges the existence of Ms. Taylor's handwritten notes, this allegation is without support in the record.

Finally, petitioner has been given, during the course of this proceeding, a written explanation for Ms. Taylor's interview of Daniel on November 16, 1990. Had no explanation been forthcoming, however, I would have declined to issue an order directing respondent to provide one. First, petitioner cites no authority for the proposition that he is entitled to a written explanation of respondent's action. Moreover, as respondent correctly points out, respondent is required to report suspected cases of child abuse to the

local CPS pursuant to '413 of the Social Services Law. Seealso Education Law '3028-b. Section 419 of the Social Services Law gives immunity from civil or criminal liability to any person, official or institution participating in good faith in the making of a report under '413. "Good faith" is presumed, provided the individual or institution is acting in the discharge of his or her duties and within the scope of his or her employment. Clearly, the Legislature's intent in granting such immunity was to encourage officials to report suspected cases of abuse without fear of retribution through litigation. That rationale applies equally to this proceeding, even though it is not strictly "civil or criminal" in nature. The willingness of school personnel to comply with the mandatory reporting requirement would be substantially diminished if their actions were subject to judicial review absent evidence of willful misconduct or gross negligence. See Social Services Law '419.

I find no such evidence here. It was certainly within Ms. Taylor's authority as school guidance counselor to meet with Daniel, especially in light of the information provided by the school nurse and petitioner's past history, which includes a prior referral to CPS followed by mandated family counseling. Daniel's statements to Ms. Taylor clearly gave her reasonable cause to suspect that Daniel was being abused or maltreated. Although petitioner introduced affidavits of Daniel denying that petitioner beat or punished him, I do not find them credible in light of the affidavits of Ms. Taylor, Ms. Kaufman and the potential for the exercise of undue influence upon Daniel by petitioner.