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Decision No. 14,027

Appeal of MICHAEL CARDO from action of the Board of Education of the Coxsackie-Athens Central School District and James Maxwell, Principal, relating to interference with an employment contract.

Decision No. 14,027

(November 12, 1998)

McCary & Huff, LLP, attorneys for respondent board of education, Kathryn McCary, Esq., of counsel

Whiteman, Osterman and Hanna, attorneys for the Board of Cooperative Educational Services of Rensselaer-Columbia Greene Counties (Questar III), Norma Meachem, Esq., of counsel

MILLS, Commissioner--Petitioner appeals the decision of respondent Maxwell, principal of Coxsackie-Athens High School, to reject him as the teacher of the driver training course offered by respondent Board of Education of the Coxsackie-Athens Central School District ("board") during the summer of 1997. The appeal must be dismissed.

During the summer of 1996, respondent board offered a driver training course for students and contracted with the Board of Cooperative Educational Services of Rensselaer-Columbia-Greene Counties ("BOCES") to provide an instructor for the course. BOCES employed petitioner to teach the course. On August 13, 1996, petitioner took four of his students to the Albany area to practice driving in heavy traffic conditions. While in the Albany area, they stopped to have lunch at "Hooters" restaurant of Albany.

By letter dated May 28, 1997, a BOCES administrator notified respondent Maxwell that petitioner had again been assigned to teach the driver training course at Coxsackie-Athens High School during the summer of 1997. Respondent Maxwell thereupon requested assignment of a different instructor.

Petitioner contends that respondent Maxwell wrongfully interfered with his employment contract with BOCES. He asserts that respondent Maxwell waited 9" months before notifying petitioner and BOCES that he was dissatisfied with petitioner's services. He further asserts that respondent Maxwell improperly penalized him for respecting his students’ choice of restaurant. Finally, petitioner argues that the "penalty" imposed by respondent Maxwell is disproportionate and excessive.

Respondent board objects to certain portions of an affidavit submitted in support of petitioner’s reply and to an unsigned letter submitted as an exhibit to that affidavit. I have accepted petitioner’s affidavit, but in determining how much weight to give the allegations set forth therein, I have noted the hearsay nature of some of the assertions. I have rejected, however, the letter to which respondent board objects because it appears to be an unsigned and unsworn statement prepared solely for purposes of this proceeding. As such it does not constitute a valid exhibit (8 NYCRR 276.2[d]; Appeal of Tarolli, 38 Ed Dept Rep 60).

At the time he submitted his reply, petitioner also sought permission to submit an additional claim based on the First Amendment rights of district students. Petitioner has no standing to assert the rights of these students (Appeal of Szymkowiak, 36 Ed Dept Rep 204; Appeal of Ulcena, 33 id. 328; Appeal of Chesbrough, 32 id. 647). Moreover, the purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14; Appeal of John W., 37 Ed Dept Rep 713). 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 John W., supra). Accordingly, petitioner’s request to submit an additional claim in his reply is denied.

Respondent Maxwell asserts that he was never served with the notice and petition in this appeal. Respondent board contends that I lack subject matter jurisdiction over this case since petitioner alleges tortious interference with a contract and seeks relief that is not available in an appeal under Education Law "310. BOCES contends that it was not named as a party to this proceeding, that it was not properly served, and that petitioner had no right to employment by BOCES.

With respect to the role of BOCES in this proceeding, I note that petitioner did not name BOCES as a respondent. Rather, in the title to his petition, he indicates that he is simply providing notice of the proceeding to the BOCES. Furthermore, petitioner does not assert that BOCES acted improperly; nor does he seek any relief against BOCES. Accordingly, I conclude that BOCES is not a party to this proceeding.

Although named as a respondent in this appeal, there is no indication that respondent Maxwell was served with the notice and petition commencing the proceeding as required by "275.8 of the Commissioner's regulations. Although he signed an affidavit on behalf of respondent board, he has not filed an answer or otherwise appeared as a party. Accordingly, the appeal must be dismissed against respondent Maxwell.

Petitioner's claims must be dismissed for lack of jurisdiction. An appeal to the Commissioner of Education is not the appropriate forum in which to obtain review of his contention that respondents wrongfully interfered with his alleged contract with BOCES. The nature of petitioner’s claim is a tort action in which he seeks damages for wrongful interference with what he asserts to be an employment contract. The appropriate forum for such a proceeding is a civil court (Appeal of Cohen, 30 Ed Dept Rep 252).

Moreover, I find that respondent Maxwell acted reasonably and within the bounds of his authority when he requested that BOCES assign a different driving instructor. Respondent Maxwell had a number of concerns with petitioner’s job performance, including concerns related to safety and judgment. Finally, it must be noted that petitioner was not an employee of the school district and had no expectation of continued work in the district.