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Decision No. 13,702

Appeal of EDWARD E. SZYMKOWIAK from action of the Board of Cooperative Educational Services for the Sole Supervisory District of Sullivan County in relation to AIDS instruction, district smoking policy and termination of employment.

Decision No. 13,702

(November 14, 1996)

Shaw & Silveira, Esqs., attorneys for respondent, David S. Shaw,

and Margo L. May, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the termination of his employment as a probationary teacher by the Board of Cooperative Educational Services for Sullivan County ("respondent"). He also challenges respondent's compliance with 8 NYCRR '135.3(c)(2)(i) relating to instruction in acquired immune deficiency syndrome (AIDS) and with State and federal statutes relating to smoking in public schools. The appeal must be dismissed.

Petitioner was employed by respondent as a probationary teacher during the 1994-95 school year. By letter dated April 13, 1995 respondent's district superintendent advised petitioner that he would not be recommended for continued employment by respondent for the 1995-96 school year. The letter indicated that respondent would vote on the recommendation at its May 16, 1995 meeting. On May 16, 1995 respondent voted to terminate petitioner's employment, effective at the close of the 1994-95 school year.

In this appeal, petitioner challenges that determination, alleging that respondent terminated his employment in retaliation for his complaints relating to respondent's compliance with 8 NYCRR '135.3(c)(2)(i) (AIDS instruction) and with State and federal laws prohibiting smoking on public school property. Petitioner also raises the issue of respondent's compliance with those regulations and statutes for my review herein. Specifically, petitioner claims that respondent is not in compliance with the provisions of 8 NYCRR '135.3(c)(2)(i) relating to AIDS instruction because it failed to establish an AIDS advisory council and because respondent coordinated several workshops on AIDS related issues improperly using non-school presenters from outside agencies. Petitioner claims that, in permitting the presentation of such workshops, respondent violated that portion of 8 NYCRR '135.3(c)(2)(i) which requires that HIV/AIDS instruction "shall be given during an existing class period using existing instructional personnel."

With respect to the issue of smoking in public schools, petitioner claims that during the first weeks of the 1994-95 school year, respondent permitted smoking to occur in designated areas of one of its public school buildings. Thereafter, respondent maintained an outdoor area for smoking which was discontinued later in the fall semester. However, petitioner claims that respondent nevertheless allowed smoking to occur indoors with no disciplinary consequences. Petitioner also claims that respondent failed to post any "No Smoking" signs in its buildings and failed to post or provide him with a copy of its smoking policy. Petitioner alleges that, therefore, respondent violated the requirements set forth in New York State Public Health Law, Article 13-E and the federal Pro-Children Act of 1994.

In its answer respondent raises a jurisdictional objection and procedural defenses, including lack of standing and timeliness. With respect to the merits of the appeal, respondent asserts that the provisions of 8 NYCRR '135.3 do not apply to boards of cooperative educational services ("BOCES") but, instead, apply only to boards of education. In response to petitioner's complaints regarding smoking in public schools, respondent asserts it has fully complied with both State and federal law. Finally, respondent asserts that termination of petitioner's services was in all respects proper.

I will first address the jurisdictional issue raised by respondent. In its answer respondent asserts that petitioner's claims brought pursuant to New York State Public Health Law and the federal Pro-Children Act of 1994 may not be pursued in an appeal brought pursuant to Education Law '310. Similarly, respondent contends that petitioner's claim that his discharge was in retaliation to his complaints regarding respondent's compliance with 8 NYCRR '135.3(c)(2)(i) and smoking issues may not be raised in a '310 appeal. Apart from the conclusory statements in its answer, respondent offers no legal basis for its position. Education Law '310 provides, in pertinent part:

Any party considering himself to be aggrieved may appeal by petition to the Commissioner of Education who is hereby authorized to hear and decide the same; ... The petition may be made in consequence of any action:

. . .

7. By any other official action or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools. (Emphasis supplied)

State and federal laws related to smoking on public school property, the provisions of 8 NYCRR '135.3 regarding AIDS instruction in public schools, and the reasons underlying the discharge of probationary teachers are all matters pertaining to common schools which are within the jurisdiction of the Commissioner of Education. Consequently, I find that each of petitioner's claims are properly the subject of an appeal brought pursuant to Education Law '310.

Respondent contends that, with respect to petitioner's allegations relating to 8 NYCRR '135.3(c)(2)(i) (AIDS instruction) and to Public Health Law, Article 13-E and the federal Pro Children Act of 1994 (smoking on public school property), petitioner lacks standing to maintain this appeal. To maintain an appeal pursuant to Education Law '310, a party must be aggrieved in the sense of having suffered personal damage or impairment to his or her civil, personal or property rights (Appeal of Goloski, 34 Ed Dept Rep 565; Appeal of Ulcena, 33 id. 328; Appeal of Allert, 32 Ed Dept Rep 538). With respect to his claims regarding AIDS instruction, petitioner has asserted no personal injury or effect upon his rights. Indeed, he does not even claim to reside in the area served by respondent's BOCES. Petitioner claims he is bringing the appeal on behalf of all students who attend respondent's BOCES. However, petitioner is not himself a student and otherwise lacks standing to asset the rights of others (See, Appeal of Ulcena, supra). Therefore, petitioner lacks standing to maintain that part of the appeal challenging respondent's compliance with 8 NYCRR '135.3(c)(2)(i). However, with respect to his claims regarding respondent's compliance with State and federal laws relating to smoking on public schools grounds I find that, as an employee, petitioner suffers personal harm as a result of any non-compliance by respondent. Petitioner, therefore, has standing to maintain that portion of his appeal.

Respondent also contends that, with respect to petitioner's claims regarding its compliance with 8 NYCRR 135.3(c)(2)(i) and with State and federal law regarding smoking in public schools, the appeal is untimely. Section 275.16 of the regulations of the Commissioner of Education require that an appeal be brought within 30 days of the action or decision complained of. With respect to petitioner's claims under 8 NYCRR '135.3(c)(2)(i), the record indicates that, although petitioner inquired whether respondent established an AIDS advisory council as early as March 11, 1995, he did not receive a response to that inquiry until respondent submitted its answer herein. Consequently, that portion of petitioner's appeal will not be dismissed as untimely.

However, petitioner's claim that respondent acted in violation of 8 NYCRR '135.3(c)(2)(i) when it presented workshops by outside agencies rather than providing HIV/AIDS instruction during existing classes using existing staff is untimely. Although the petitioner specifically cites one workshop which was presented on May 12, 1995 - within 30 days of service of the petition on June 8, 1995 - an exhibit to the petition contains a schedule of such workshops addressing issues relating to HIV/AIDS instruction presented on February 23, March 1, 7 and 14, 1995. Moreover, a letter by petitioner dated March 11, 1995 refers to such workshops. Therefore, I find that petitioner was aware of respondent's actions at least as of March 11, 1995. The petition was served on June 8, 1995 - more than 30 days later. Consequently, I find that part of petitioner's appeal that challenges respondent's coordination of workshops by outside presenters as a means of providing information relating to AIDS is untimely.

Petitioner's claims regarding respondent's compliance with State and federal laws regarding smoking on public school grounds are timely brought. The record indicates that petitioner formally complained to respondent on May 8, 1995. The record further indicates that as of May 9, 1995 respondent's staff acknowledged the need to develop a policy applying to students caught smoking in school, respondent had not yet provided petitioner a copy of its policy on smoking/tobacco use as petitioner had requested nor had respondent posted "No Smoking" signs in its buildings. Having served the petition on June 8, 1995, I find that portion of the appeal relating to smoking issues to be timely.

Nevertheless, the appeal must be dismissed on the merits. Petitioner challenges respondent's compliance with 8 NYCRR '135.3(c)(2)(i) relating to AIDS instruction. However, that regulation provides in pertinent part:

All secondary schools shall provide appropriate instruction concerning the acquired immune deficiency syndrome (AIDS) as part of required health education courses in grades 7-8 and 9-12 ... In public schools, such instruction shall be given during an existing class period using existing instructional personnel, and the board of education or trustees shall provide appropriate training and curriculum materials for the instructional staff who provide such instruction and instructional materials to the parents who request such materials. In public schools, the board of education or trustees shall establish an advisory council which shall be responsible for making recommendations concerning the content, implementation, and evaluation of an AIDS instruction program ...

The provisions of 8 NYCRR '135.3(c)(2)(i) do not apply to BOCES. It is the local boards of education that are required to establish AIDS advisory councils and to provide instruction consistent with the Commissioner's Regulations. Education Law '1709(3) vests boards of education with the authority to prescribe the courses of study for the schools of the district, including the power to contract for BOCES services. Therefore, while AIDS instruction may include workshops provided through BOCES shared services, the ultimate responsibility for ensuring compliance with 8 NYCRR '135.3(c)(2)(i) rests with the component boards of education. Because petitioner's claims of non-compliance with '135.3(c)(2)(i) involve the rights and responsibilities of the component boards of education comprising respondent's BOCES and an adverse decision would effect them, they are necessary parties to the appeal. Here, petitioner has failed to name or serve any of the component boards of education in respondent's BOCES. Therefore, those claims must be dismissed for failure to join a necessary party (Appeal of Hunter, 34 Ed Dept Rep 416). In any event, there is no indication in the record that the workshops coordinated by respondent take the place of any component district's AIDS instructional curriculum (See, Appeal of Akshar, 35 Ed Dept Rep 424).

Petitioner's claims regarding respondent's compliance with State and federal law relating to smoking on public school property must also be dismissed. Petitioner asserts in his pleadings that, after his May 8, 1995 complaint, respondent took action to correct areas of non-compliance including the development and issuance of a policy relating to "Smoking/Tobacco Use" on school property. A copy of the policy was provided to petitioner and is annexed to the petition. In its answer respondent claims it is in the process of posting "No Smoking" signs in its building, and petitioner does not deny that claim in his verified reply. It is well settled that the Commissioner of Education will not decide issues that subsequent events have put to rest (Appeal of the Board of Education, East Ramapo Central School District, 35 Ed Dept Rep 542; Appeal of Nash, 35 id. 203). Therefore, I find petitioner's claims with respect to respondent's compliance with Public Health Law, Article 13-E and the federal Pro-Children Act of 1994 are moot.

Finally, petitioner's claim that respondent terminated his probationary employment in retaliation for making the above-noted complaints must also be dismissed. Pursuant to Education Law '3031(1)(a), the services of a probationary teacher may be discontinued at any time during the probationary period, and dismissal of a probationary teacher will not set aside unless the teacher shows that a board terminated service for a constitutionally impermissible purpose (James v. Bd. of Educ. of Central School District No. 1 of Towns of Orangetown and Clarkstown, 37 NY2d 891; Appeal of Fillie-Faboe, 34 Ed Dept Rep 643). Although petitioner makes conclusory allegations that his dismissal was without merit and retaliatory, he offers no proof to support his claim. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief and the burden of demonstrating a clear legal right to the relief requested (Appeal of Fillie-Faboe, supra). Since petitioner's allegations are conclusory in nature and no supporting evidence has been submitted, I find that he has not met his burden of proof.

Moreover, the record indicates that respondent's decision had a rational basis. The record contains evaluations of petitioner conducted by respondent's supervisory staff indicating areas of weakness in petitioner's performance which persisted over time. Therefore, it appears that respondent had a legitimate basis for terminating petitioner's services. Accordingly, there is no basis for me to order petitioner's reinstatement.