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Decision No. 12,772

Appeal of BERNARD M. MITZNER from action of Board of Education and Joseph Colistra, Superintendent of Goshen Central School District, relating to actions of the Superintendent.

Decision No. 12,772

(August 5, 1992)

Shaw and Silveira, Esqs., attorneys for respondents, Garrett L. Silveira, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Goshen Central School District, appeals from the superintendent's failure to discipline two teachers and seeks relief in a separate appeal relating to the superintendent's refusal to answer petitioner's questions. Because these appeals are based on the same set of facts, they are consolidated for decision. The appeals are dismissed.

In 1988 a fifth grade writing examination was administered in respondents' school district. On February 25, 1992, in response to petitioner's request to investigate and file charges against two teachers who petitioner alleged had committed errors in the grading of that examination, Superintendent of Schools Joseph Colistra (the "respondent") informed petitioner that he would not pursue the matter since the statute of limitations for filing charges had passed and because, based on his investigation of the allegations, he found no wrongdoing.

In December 1991 and February 1992, the two teachers were deposed in a federal court proceeding on matters relating to the 1988 examination. On March 9, 1992, petitioner wrote to respondent Colistra asserting that the teachers had lied under oath. In a letter dated March 10, 1992, respondent Colistra informed petitioner that he would not comment on the matter because it was the subject of litigation. In response to a Freedom of Information request ("FOIL") seeking copies of prescored examinations, the State Education Department, on April 14, 1992, informed petitioner that there is no annual statewide mailing of prescored fifth grade writing test papers to school districts. On April 18, 1992, petitioner filed a FOIL request with respondent seeking scores of the prescored writing test. On April 27, 1992, respondent informed him that his request was denied, as the documents were not within the district's possession. On May 1, 1992, petitioner wrote to respondent Colistra questioning whether the two teachers who graded the 1988 examinations would be permitted to grade the 1992 examinations. In a letter dated May 1, 1992, respondent Colistra informed petitioner that he should refer questions relating to the two teachers to the school board attorney. These appeals ensued.

Petitioner challenges respondent Colistra's failure to act on his request to discipline the two teachers for grading irregularities in 1988 and for allegedly lying under oath, and for the superintendent's refusal to respond to his questions regarding these teachers. Petitioner seeks no disciplinary action against the two teachers but requests an order declaring that the superintendent performed his job improperly by not filing 3020-a charges against the teachers. Petitioner asks that any delay in filing the petition be excused because he had hoped to resolve these matters informally and had waited to file the appeals until after he received a response from the State Education Department to his FOIL request.

Respondents raise several affirmative defenses. First, they argue that petitioner fails to state a claim upon which relief may be granted. Additionally, they assert that petitioner's claim alleging a violation of the Freedom of Information Law (FOIL) should be dismissed as outside the Commissioner's jurisdiction. Respondents also claim that the appeals are premature as to the board of education, because they do not seek review of the board's final action. Finally, respondents assert that although petitioner claims that respondent Colistra did not respond to his questions, he simply failed to give petitioner the answer he wanted.

The appeals must be dismissed as against the board of education as premature. Petitioner apparently seeks review of the actions of the board of education regarding the superintendent's failure to initiate disciplinary action against two teachers. However, petitioner makes no claims against the board of education. Instead, the record indicates that petitioner never sought the board's review of the superintendent's actions from which petitioner now appeals. Since petitioner appears to challenge the board's actions, but never sought or obtained its determination on the matters pending before me, the appeal as to the board of education is premature and must be dismissed.

Although petitioner requests that I reprimand the superintendent for refusing to answer his questions, he offers no legal basis for his claim. While the law requires written notice of decisions relating to children with disabilities (Education Law '4402; 8 NYCRR Part 200.5; 20 USC '1415; 34 CFR ''300.345, 300.507; Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 324) and responses to requests for access to student records (8 NYCRR 200.5; 20 USC '1415; 34 CFR '300.502; Education Law '2116; New York State Public Officers Law, Freedom of Information Law, Article 89; Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 324), there is no law that mandates the superintendent's response to petitioner's inquiry. While a school district's failure to respond to a resident's request in a timely manner cannot be condoned (Appeal of Mitzner, 31 Ed Dept Rep __; Decision #12742; dated July 2, 1992), I find no violation of law. Furthermore, the record indicates that, although not to petitioner's liking, respondent in fact answered petitioner's letter.

Petitioner does not seek any action against the teachers and does not seek the superintendent's dismissal. Instead, he seeks a determination that because the teachers' actions were wrongful, the superintendent should be reprimanded for failing to take the appropriate actions against them. In essence, petitioner seeks an advisory opinion. An appeal brought pursuant to Education Law '310 is not a proper forum for issuing advisory opinions (Appeal of Children with Handicapping Conditions, 31 Ed Dept Rep 21; Application of a Child with a Handicapping Condition, 30 id. 262; Matter of Board of Education of Bellmore-Merrick Central High School District, 19 id. 125; Matter of Grady, et al., 16 id. 131). Therefore, the appeals are dismissed.

The Freedom of Information Law claims raised in these appeals must also be dismissed. The appropriate forum for addressing a violation of the Freedom of Information Law is the Supreme Court of the State of New York (Application of Eisner, 31 Ed Dept Rep ___, Appeal #12719, June 16, 1992; Appeal of Strober, 30 id. 4).