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Decision No. 13,423

Appeal of JUDITH M. JAROSZ, on behalf of her daughter, MARISA, from action of the Board of Education of the Frontier Central School District regarding district records.

Decision No. 13,423

(June 6, 1995)

Hodgson, Russ, Andrews, Woods and Goodyear, Esqs., attorneys for respondent, Joseph L. Braccio and Jeffrey F. Swiatek, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals the refusal by the Board of Education of the Frontier Central School District ("respondent") to remove her daughter's name from district personnel records and transfer her to another district. The appeal must be dismissed.

Petitioner is a teacher in respondent's district whose daughter, Marisa, was a student at respondent's high school. On December 8, 1993, respondent made a report of suspected child abuse or maltreatment to the Erie County Department of Social Services against petitioner and Ralph Brown, a school psychologist, based on a statement Marisa made to a school counselor. Mr. Brown was residing with petitioner and her daughter at the time the allegation was made. On February 25, 1994, petitioner and Mr. Brown received written notification from the New York State Department of Social Services that the report of suspected child abuse was unfounded.

On or about August 12, 1994, petitioner came into possession of a letter from respondent's attorney to Dr. Wolin, a psychiatrist retained to evaluate Mr. Brown. Petitioner's daughter was mentioned in the letter. Mr. Brown apparently requested that any information regarding Marisa be removed from his personnel file, but that request was refused. On October 31 and November 13, 1994, Marisa wrote to respondent requesting that information mentioning her be removed from Mr. Brown's personnel file. On November 17, 1994, Mr. Brown was suspended with pay and informed that Education Law '3020-a proceedings would be brought against him. This appeal ensued.

Petitioner argues that any information in Mr. Brown's files pertaining to her daughter should be removed and alleges that this information may arise in the pending '3020-a proceeding against Mr. Brown and could be harmful to her daughter. She also requests that Marisa be permitted to attend a neighboring school district.

Respondent raises a number of procedural objections. Respondent claims that the appeal is moot, untimely and that the petition fails to state a claim upon which relief may be granted. Respondent also objects to new allegations and exhibits contained in petitioner's reply. Respondent further contends that it has no legal obligation to remove references to petitioner's daughter from Mr. Brown's personnel file.

Before reaching the merits, I will address respondent's procedural objections. Petitioner offers new allegations and exhibits in her reply. However, the purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (Appeal of Whitaker, 33 Ed Dept Rep 59; Appeal of Taber, et al., 32 id. 346; Appeal of Mermelstein, et al., 30 id. 119). Accordingly, I will not consider the new allegations and exhibits in petitioner's reply.

Respondent claims that the appeal is untimely since the petition was served on November 23, 1994 and petitioner claims to have received the letter in controversy in August 1994. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). Petitioner claims that she had back surgery in June 1994 and was unable to file the petition within the 30 day time period. Although petitioner's illness is regrettable, it is not a sufficient excuse for the delay. Accordingly, the appeal is dismissed as untimely.

Respondent also claims that the appeal is moot since it has arranged to transfer Marisa to a neighboring school district and has deleted her name from the letter. The record indicates that petitioner's daughter was transferred from respondent's high school effective January 30, 1995. The August 12, 1994 letter from respondent's attorney to Dr. Wolin has been modified to delete Marisa's name. The Commissioner of Education will decide only cases where an actual controversy exists and will not render a decision concerning a dispute which subsequent events have laid to rest (Appeal of Chrisfield, 33 Ed Dept Rep 463; Appeal of Hartmann, 32 id. 640; Appeal of Healy, 29 id. 391). Since petitioner's daughter has been transferred and the letter has been altered, I find that the appeal is moot.

The appeal must also be dismissed on the merits. Petitioner appears to allege that respondent has an obligation to expunge her daughter's name from all its records concerning the child abuse allegations based on Social Services Law '422 and accompanying regulations (18 NYCRR 432.10). Those sections of law and regulation require that if a report of suspected child abuse or maltreatment is "unfounded", all information identifying the subject of the report and other persons named in the report is expunged from the Social Services' Central Register and from the records of the local child protective service which investigated the report. However, that obligation does not pertain to school districts. Upon my review of the record, there is no basis for me to order respondent to alter its personnel records based on the Social Services Law. Therefore, I cannot grant the relief petitioner seeks.

I have reviewed the parties' remaining contentions and find them without merit.