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Decision No. 13,120

Application of JANET GIELOWSKI, 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. 13,120

(February 28, 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.

The petition in this appeal is a one-page document in which petitioner alleges that her daughter, who attends School 57, was harassed when money was taken from her. She further alleges that when she attempted to contact the respondents about this matter, they refused to speak with her. Respondents have submitted a record of actions taken in connection with the alleged harassment. It indicates that on an unspecified date during the 1992-93 school year, petitioner's daughter somehow obtained a dollar bill that belonged to another student and that the dollar was returned to that student. At that time, the principal of School 57 asked petitioner to review the matter with her daughter to find out what happened and report back to her. When petitioner did not subsequently contact the principal, the principal did not pursue the issue. Finally, respondents Thompson, Dougherty and Mayo, who are district administrators whose offices are not located at School 57, maintain that they were unaware of petitioner's attempts to contact them or of the incident in question until they were served with this appeal.

As an initial matter, the appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days of the decision or action complained of. Failure to commence an appeal in a timely manner may be excused by the Commissioner for good cause shown (8 NYCRR 275.16). Petitioner refers to events that occurred during the 1992-93 school year, but did not commence this appeal until September 16, 1993. In light of the fact that petitioner offers no excuse for the lateness of her appeal, it must be dismissed as untimely (Appeal of Wood, 32 Ed Dept Rep 470).

Further, while petitioner requests the removal of the principal of School 57, petitioner has failed to join that individual as a party in this appeal. Since the principal would be adversely affected if I granted the relief requested by petitioner, petitioner's failure to join the principal as a party respondent necessitates dismissal of the appeal as to her (Appeal of Kellogg, 33 Ed Dept Rep 187; Matter of Weiss, 19 id. 308).

The appeal must also be dismissed on the merits. 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 upon which he or she seeks 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; ...

In this case, respondents Thompson, Dougherty and Mayo maintain that they were unaware of petitioner's attempts to contact them and knew nothing about the incident in question until served with this appeal. Petitioner offers no proof to counter respondents' assertions. Moreover, there is no evidence that respondents personally bore any responsibility for the incident. While administrators should endeavor to be responsive to parents' concerns, respondents were under no legal obligation to respond to petitioner's telephone calls on this matter. Accordingly, their failure to do so does not give rise to a willful violation of law or neglect of duty warranting respondents' removal pursuant to Education Law '306. Thus, petitioner has failed to sustain her burden of establishing that respondents have acted improperly in this matter.

Nor is there any basis in the record to grant 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, 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 presented no proof that her daughter requires a transfer or, indeed, that she has requested such a transfer from school officials, there is no basis to grant her request.