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Decision No. 13,108

Application of HELENE STRESING for the removal of Albert Thompson, Superintendent, Mary E. Dougherty, Associate Superintendent, and Johnnie M. Mayo, Assistant Superintendent, of the City School District of the City of Buffalo for neglect of duty.

Decision No. 13,108

(February 22, 1994)

Hon. Laurence K. Rubin, Corporation Counsel, attorney for respondents, David F. Mix, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks the removal of the superintendent, associate superintendent and assistant superintendent of the Buffalo City School District. She also requests the transfer of her daughter from the school she presently attends to another school in the Buffalo district. The application must be denied.

Education Law '306 authorizes the Commissioner of Education to remove a school officer for wilful violation or neglect of duty under the law (Education Law '306(1); Application of Steenrod, 32 Ed Dept Rep 490; Application of Sabuda, 31 id. 461). In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts warranting relief (8 NYCRR 275.10; Application of Steenrod, supra; Appeal of Garnett, 32 Ed Dept Rep 91). Section 277.1 of the Regulations of the Commissioner of Education requires that an application seeking removal of a school officer set forth

the willful violation of law, neglect of duty, or willful disobedience of a decision, order or regulation of the commissioner charged against the officer and the facts by which it is established . . . [which] must be set forth with such certainty as to time, place and all other pertinent details, as to furnish the officer with precise information as to what he is expected to meet; . . .

The petition in this appeal is a perfunctory one-page document in which petitioner alleges that on the last Monday of the 1992-93 school year, her daughter "was attacked in the school gym of Indian Park Academy - No. 70." She further claims that when she tried to contact the respondents about this matter, they would not speak to her.

Respondents have submitted a record reflecting actions taken by school officials at Indian Park Academy in connection with the alleged assault. It indicates that petitioner's daughter has significantly changed her version of the incident at least twice. It further indicates that her account is contradicted by that of the two students who allegedly assaulted her, an independent student witness, and a lunch aide who was in the doorway of the gym at the time of the alleged incident. Based on the results of the investigation as reflected in the record, respondents took no action against the alleged perpetrators. Finally, respondents maintain that they were personally unaware of petitioner's attempts to contact them or of the incident until this appeal was commenced. As indicated above, the incident complained of by petitioner was investigated by officials at Indian Park Academy, not by respondents, who work in a central administrative office of the Buffalo district.

Because the investigation into petitioner's complaint revealed inconsistencies in her daughter's statements, as well as conflicting testimony, and since there is no evidence that respondent failed to respond to petitioner, petitioner has failed to sustain her burden of establishing that respondents have acted improperly in this matter or that they are guilty of willful neglect of duty.

Regarding petitioner's transfer request, a board of education has broad discretion to manage and administer the affairs of its school district, including the assignment of pupils to schools therein (Appeal of Mulholland, 32 Ed Dept Rep 384; Matter of Older, et al. v. Board of Ed., 27 NY2d 333). Moreover, in the assignment of pupils to schools, pupil assignments will be overturned only when there is a clear showing that the board acted arbitrarily, capriciously or contrary to sound educational policy (Appeal of Cullen, 32 Ed Dept Rep 179; Matter of Addabbo v. Donovan, 32 AD2d 383, affd 16 NY2d 619). Since petitioner has failed to establish that respondents acted improperly in this matter, there is no basis to grant her transfer request.