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Decision No. 12,668

Appeal of SUZANNE ROSSI and LAUREN WAGNER from action of the Board of Education of the Sayville Union Free School District regarding teacher discipline.

Decision No. 12,668

(March 20, 1991)

Edward J. McGowan, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners appeal from respondent's actions regarding the alleged misconduct of a first-grade teacher employed in the Sayville Union Free School District ("the district"). The appeal must be dismissed.

Petitioners' children attended first grade at the district's Sunrise Drive Elementary School during the 1990-91 school year. In November 1990, petitioner Rossi's son began to exhibit symptoms of anxiety on Sunday evenings and before leaving for school in the mornings. He entered psychotherapy on November 17, 1990. While in therapy, the child indicated that his first-grade teacher ("the teacher") asked students to massage her feet during storytime. He further stated that he disliked the teacher's boyfriend, who accompanied the class on field trips.

On January 30, 1991, petitioners met with the district's superintendent of schools to discuss the teacher's behavior. They complained that the teacher had encouraged children to massage her neck, shoulders, arms, back and feet, and that her boyfriend had visited the classroom on several occasions. Petitioners also alleged that the teacher's boyfriend had graded students' test papers.

The following day, the superintendent met with the teacher, the school principal and other school administrators to investigate petitioners' complaints. The teacher admitted that her boyfriend had visited the class to discuss his job with the students, that he had come to the classroom on several occasions to take her home at the end of the day and that once, when she was ill, he had assisted in grading her students' papers. She denied the remaining allegations. The superintendent reprimanded the teacher for permitting an outsider to grade papers. He further informed her that he would continue to investigate petitioners' allegations regarding the massages. On February 1, 1992, the superintendent met with petitioners to report on his meeting with the teacher.

On February 5, 1991, the superintendent instructed a member of his administrative staff to discuss petitioners' allegations with the local Child Protective Services and with the Suffolk County Police Department sex crimes unit. According to respondent, both agencies stated that the allegations involving the massages, if true, reflected poor judgment by the teacher but did not constitute sexual or emotional abuse. The superintendent met with petitioners on February 6, 1991 to report these findings. Reiterating that the teacher had been severely reprimanded and that she would be observed closely, he indicated that the district did not consider the teacher's actions grounds for dismissal. The superintendent offered to transfer petitioners' children to other first-grade classrooms, and to refer them for psychological counseling at district expense, should they so desire. The students did change classrooms for a short time, but transferred back to the teacher's classroom, at their own request. Petitioner Rossi's son subsequently had one counseling session with a psychologist at district expense. Further sessions were found to be unnecessary.

On February 14, 1991, respondent board of education met to consider petitioner's allegations and the superintendent's findings. The board took no disciplinary action against the teacher, but instructed the superintendent to continue monitoring the situation. There were no further reports of misconduct. Petitioners commenced this appeal on July 8, 1991.

Respondent contends that the appeal is untimely. The Regulations of the Commissioner of Education provide:

[a]n appeal to the Commissioner must be instituted within thirty days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16).

On February 14, 1991, respondent decided not to take disciplinary action against the teacher. An appeal should have been brought within 30 days after that date (Appeal of Gonzalez, 28 Ed Dept Rep 231, 233). Although it is appropriate to interpret the regulations liberally when a petitioner is not represented by counsel (see, Appeal of DeGroff, 31 Ed Dept Rep ___, Decision No. 12657, dated February 28, 1992), the record indicates that the delay in commencing this appeal was intentional. Petitioners affirmatively state, "since we had to return our children to this teacher's classroom during the year, we did not want any acts of repercussions set forth against our children and, therefore, did not file a petition at that time." The petition also states, however, that petitioners voluntarily returned their children to the teacher's classroom. Moreover, there is no evidence to suggest that "repercussions" would have occurred had petitioners commenced this appeal in a timely fashion. The appeal must, therefore, be dismissed as untimely.

The appeal must also be dismissed for failure to comply with '275.10 of the Regulations, which provides that a petition:

... shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of (8 NYCRR 275.10).

The petition herein does not identify respondent's "official act or decision" from which the appeal is taken (Education Law '310[7]). While it is reasonable to infer that petitioners appeal from the district's refusal to take disciplinary action against the teacher, this argument is moot, as the teacher's temporary employment in the district ended on August 2, 1991.

Petitioners' only other request seeks revocation of the teacher's certificate. The district, however, has no authority to take such action. To the extent petitioners ask me to revoke the teacher's certificate, such relief is not available in an appeal pursuant to Education Law '310.