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Decision No. 12,850

Appeal of VICKI TABER, KEITH TAYLOR and ELLEN WALKER from action of the Board of Education of the Port Byron Central School District relating to disciplinary action taken against the superintendent of schools.

Decision No. 12,850

(December 21, 1992)

Frederick R. Westphal, Esq., attorney for petitioners

Matthew R. Fletcher, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners appeal from respondent's placement of a letter of reprimand in the personnel file of its superintendent of schools, in response to complaints that he used physical force against a thirteen year-old student. Petitioners seek an order directing respondent to terminate the superintendent's services. The appeal must be dismissed.

On January 30, 1992, two girls' basketball games were held in the Port Byron Central School District with the Cato-Meridian Central School District. At the end of one of the games, a student from the Cato-Meridian district made a racist remark to a student from Port Byron, causing the student to become upset. Robert Foreman, a teacher and chaperon from Port Byron, intervened to resolve the situation. Thereafter, petitioner Taber's son, David, joined in and made derogatory remarks to other students from Cato-Meridian. Mr. Foreman asked David to stop, but the student continued, and the teacher asked him to leave the premises. Instead, David returned to his seat in the gymnasium. When Mr. Foreman saw David in the gym, he once again asked him to leave the building. David refused and became verbally abusive. Apparently, Mr. Foreman then attempted to physically remove David. At that point, respondent's superintendent of schools, Dr. Robert Harris, offered to assist Mr. Foreman and directed David to leave the premises. David refused and became verbally abusive with the superintendent, who then grabbed him by the wrist, pulled him out of his chair and carried him out of the gymnasium, down the hallway toward the elementary school office. David resisted, swinging his feet from side to side. According to witnesses, the student broke away from the superintendent at least twice. Apparently, there were a few moments when Dr. Harris and the student were out of the witnesses' view.

Events during that time are controverted. Apparently, the student struggled to get away from the superintendent and both ended up on the floor. Petitioners claim that Dr. Harris placed his knees on the student's thighs and choked him. The superintendent states that he straddled the student to restrain him after he struck the superintendent in the groin and in the face. In addition, the superintendent admits that, at one point in the struggle, he placed his hands on David's neck and throat to subdue him. Thereafter, David stopped resisting, and witnesses testified that Dr. Harris was holding the student as they came out of the hallway and returned to the elementary school office. Once inside the office, David called his father. Petitioner Taber picked up her son and returned home.

Once home, the student complained of pains in his chest and was taken to Auburn Memorial Hospital. Upon examination, hospital staff referred the matter to the Cayuga County Sheriff's Department where the student was subsequently interviewed and his injuries photographed. Apparently, the parents decided not to file criminal charges.

On January 31, 1992, Dr. Harris submitted a written report of the incident to respondent board of education. On February 11, 1992, respondent board addressed the incident in executive session, after hearing comments from two members of the public. As part of its investigation, the board obtained written statements from individuals who had witnessed the incident. The board received twelve written statements from witnesses and, on February 18, 1992, convened to address the matter. At the meeting, the board heard public statements from Mr. Taber, as well as from district residents. The board went into executive session and interviewed the student's parents at length. After the boy's parents left, the board discussed the matter for an hour and then interviewed Dr. Harris for an hour and one-half.

After returning to public session, respondent took two actions. First, it directed the placement of a letter of reprimand in the superintendent's file. Additionally, respondent established a committee to review the district's policies and practices relating to student discipline, including the use of restraint and physical force in maintaining order in the schools.

Petitioners appeal from the board's determination, claiming it failed to investigate adequately the incident before rendering its decision; that a reprimand is insufficient; and that termination of the superintendent's services is warranted. They also contend that Dr. Harris' certification should be revoked.

Respondent contends that its investigation was adequate; that it acted reasonably, after due deliberation, in issuing a written reprimand; and that, under the circumstances, the superintendent's discharge is unwarranted. Respondent also raises several procedural defenses which I will address before reaching the merits.

Respondent contends that petitioners may not maintain this appeal because they are not aggrieved within the meaning of Education Law '310. Respondent is correct with respect to petitioners Walker and Taylor. Petitioners Walker and Taylor allege that, as taxpayers and residents of the school district, they are aggrieved by respondent's actions. However, status as a taxpayer or resident of the school district alone does not confer standing to appeal the board's actions pertaining to an employee and a student attending the school (Appeal of Pecorale, 31 Ed Dept Rep 493; Appeal of McGraw, 31 id. 451; Appeal of Strober, 30 id. 4). To establish that petitioners are aggrieved, they must meet the following conditions: (1) the interest asserted must be arguably within the zone of interest to be protected by the statutory or constitutional provisions sought to be enforced; (2) the administrative decision for which review is sought must have a harmful effect upon the party asserting standing; and (3) there must be no clear legislative intent negating review (see, Appeal of Pecorale, supra; Appeal of Cardo, 27 Ed Dept Rep 373). Petitioners Walker and Taylor failed to establish the first two elements. Both seek to overturn the decision of the board of education solely on the ground that they disagree with it. However, neither petitioner alleges or establishes any personal harm caused by the decision. As such, the petition must be dismissed as to petitioners Walker and Taylor for lack of standing.

Petitioner Taber, however, asserts her right to contest the board's actions as the parent of the child directly involved in the precipitating event. In particular, she asks that I substitute my judgment for the board's in determining the measure of discipline imposed upon the superintendent in response to his use of corporal punishment against her son. Because petitioner challenges the board's response to her complaints about actions taken against her son, I find that she is aggrieved within the meaning of Education Law '310 and has standing to maintain this appeal (see, Appeal of Kantor, 31 Ed Dept Rep 319; Appeal of Brown, 30 id. 225).

Respondent also argues that the appeal must be dismissed because petitioners failed to join a necessary party. Petitioners seek review of the discipline imposed against the superintendent of schools. They ask that I substitute my judgment and direct the board to terminate the superintendent's services. Since petitioners seek a remedy that would affect the employment status of the superintendent, he is a necessary party to this proceeding. As such, he should have been served with notice and petition and afforded an opportunity to respond to petitioners' claims (Appeal of Healy, 29 Ed Dept Rep 391; Appeal of Zimmerman, 28 id. 382). Because petitioners failed to join him as a necessary party, the appeal must be dismissed.

In any event, even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Although a board of education has broad discretion to determine the proper discipline to be imposed upon its superintendent, it must have a reasonable basis for its determination (Appeal of Kantor, supra; Appeal of Brown, supra).

Initially, I find that petitioners have not demonstrated that the investigation conducted by the board was inadequate. To the contrary, the record indicates that respondent interviewed the student's parents several times, considered all twelve witness statements it received, and interviewed the superintendent at length. In addition, its president spoke directly with several witnesses. The record not only reveals that the board conducted a thorough investigation before rendering its decision; there is no evidence that taking additional evidence would have altered the outcome. With the exception of petitioner Walker's statement, there is no material difference of fact in any of the other witness statements. Although Walker's statement describes the superintendent's actions as "battering" and "furious", none of the other witnesses giving first-hand accounts support her characterization. Upon review of all the evidence, I do not find the board's reliance on the other witness statements, as opposed to Ms. Walker's, unreasonable.

In reviewing the actions of a board of education pursuant to Education Law '310, I must determine whether the board acted reasonably and in compliance with the requirements of law. Unless the board acted arbitrarily or failed to comply with applicable laws, I may not substitute my judgment for that of the board. After reviewing the procedures respondent employed in its investigation and the evidence in the record, I find no basis to substitute my judgment for respondent's (see, Appeal of Kantor, supra; Appeal of Danison, 30 id. 16; Appeal of Brown, supra). Further, as explained in Appeal of Kantor:

While the use of physical force on a student is prohibited by '19.5 of the Rules of the Board of Regents, that provision does not prohibit the use of reasonable physical force to restrain a student whose behavior interferes with the orderly performance of school district functions (8 NYCRR 19.5[b][4]).

The record indicates that the superintendent used physical force to control a student who not only refused to leave the building when directed to do so by school officials, but struggled, kicked and struck the superintendent when he tried to remove him physically. Consequently, I find the superintendent's actions reasonable under the circumstances. They were intended to prevent the student from injuring either himself or the superintendent, and necessary to take control of a volatile situation. I also note that the superintendent immediately reported the incident to his board of education and expressed his regrets, despite justification, for using physical force. Accordingly, I find no basis to conclude that dismissal is warranted in this case or that respondent abused its discretion in issuing a letter of reprimand.

Finally, I note that petitioners have submitted additional affidavits with their reply in support of their contentions. The purpose of a reply is to respond to procedural defenses or new material contained in the answer (8 NYCRR ''275.3, 275.14). A reply is not meant to buttress allegations contained in the petition or to add assertions or exhibits that should have been in the petition and which respondent could have answered (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119; Matter of Bd. of Ed., Broadalbin CSD, 24 id. 51). Because petitioners' reply contains additional affidavits not previously submitted with the petition, and petitioners offer no explanation for the late submission, the affidavits offered for the first time with their reply have not been considered here (see, Mermelstein, supra).