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Decision No. 12,796

Appeal of IRVING SCHACHTER from action of the Board of Education of the City School District of the City of New York relating to disciplinary action against Mary C. Tucker, counsel.

Decision No. 12,796

(September 4, 1992)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Vincent D'Orazio and Carole A. Paynter, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals from the refusal of respondent board of education to initiate disciplinary actions against its counsel, Mary C. Tucker. The appeal must be dismissed.

While the petition in this matter is rambling and disjointed, petitioner seems to assert that Ms. Tucker should be dismissed because of the manner in which she prepared answering papers in 1982 and 1986 to two separate court proceedings. Basically, petitioner contends that those answers were improper because they contained lies or misrepresented the truth. Petitioner was not a party to either of those court proceedings.

Before reviewing the merits of this appeal, it is necessary to address a procedural issue. My review of the record reveals that petitioner's reply papers contain numerous new exhibits and allegations which were not previously set forth in the petition and which do not respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Brousseau, 31 Ed Dept Rep 155). Therefore, I will not consider those portions of the reply that raise new matters.

Concerning the merits, a board of education has broad discretion in determining whether disciplinary action against an employee is warranted (Appeal of Young, 26 Ed Dept Rep 152; Matter of Fakler, 25 id. 436). A board of education must, however, have a reasonable basis for its conclusion not to proceed with disciplinary action (Matter of Bartlett, 19 Ed Dept Rep 412). In this case, when the issue was raised by petitioner, the matter was referred to respondent's independent Office of Investigation. That office investigated and found no basis to sustain petitioner's complaint. After having reviewed the record before me, I find no reason to conclude that respondent abused its discretion in declining to find probable cause for disciplinary charges against Ms. Tucker.

I have reviewed petitioner's other contentions and find them without merit.