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Decision No. 14,395

Appeal of LINDA ROBERTS from actions of Dr. Arthur W. Stellar, Superintendent of Schools for the City School District of the City of Kingston and Clayton Van Kleeck, President of the Board of Education, regarding alleged misconduct.

Decision No. 14,395

(June 21, 2000)

Shaw & Perelson, LLP, attorneys for respondents, Susan G. Whiteley, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges various actions taken by Superintendent Stellar, Board President Van Kleeck’s refusal to permit her to address the Board of Education of the City School District of the City of Kingston ("the board") in executive session, and both respondents’ refusal to recommend that the board reimburse her for legal fees incurred in defending a charge that she trespassed on school property. The appeal must be dismissed.

Petitioner was the president of the Kingston High School parent organization from June to December 1997. She also served as a parent representative on the high school shared decision-making team from 1994 to 1997. She alleges that during this time the high school’s interim principal, William Dederick, repeatedly behaved inappropriately toward her. She states that she asked respondent Stellar to counsel Mr. Dederick to behave properly, to no avail.

Petitioner asserts that in December 1998, with the approval of respondent Stellar, Mr. Dederick disbanded the shared decision-making team and reconstituted it without her as a member. When petitioner sought to attend a meeting of the new team on February 11, 1998, Mr. Dederick had her removed from school property and charged with trespassing. Respondents assert that this was the result of petitioner’s continuing refusal to follow school procedures governing visitors.

On November 30, 1998, respondent Stellar and petitioner signed a settlement agreement, which stated that the school district agreed to recommend dismissal of the trespassing charge. The agreement also provided in part:

IN CONSIDERATION THEREOF, Ms. Roberts hereby agrees to release the District, its Board of Education, officers, employees, agents and their successors from any and all claims past and present that have been or otherwise could be asserted against them, including any such claims arising from the pressing of the charges as referenced hereinabove.

By letter dated December 2, 1998, petitioner asked respondent Stellar to take action against the employees who prevented her from attending the February 11, 1998 meeting and to advise all building principals that the Open Meetings Law applies to shared decision-making team meetings. She also asked him to direct the board to reimburse her for $1000 in attorney’s fees incurred in defending the trespassing prosecution. She stated that she previously had directed the same requests to other district employees.

Dr. Stellar responded by letter dated December 9, 1998. He stated that the November 30, 1998 settlement agreement resolved petitioner’s request for attorney’s fees because it released the district from all claims by petitioner. He also stated that her other request "was addressed last year" and that "both issues have been resolved and this chapter is closed."

By letter to respondent Van Kleeck dated January 4, 1999, petitioner stated that she found respondent Stellar’s response unsatisfactory and asked the board to review it. She further stated that "because this matter involves evidence of improper conduct and violation of board policy by school employees, I am asking to address the board in executive session." In a memorandum dated January 6, 1999, respondent Van Kleeck denied petitioner’s request to address the board in executive session "upon the advice of the school district’s attorney" because the request contained no basis for conducting an executive session. This appeal ensued.

Petitioner alleges that the board has not held respondent Stellar to the standards for superintendents set forth in board policy 2240. She asks me to direct the board to hold respondent Stellar to the standards set forth in its policy, direct respondent Van Kleeck to permit her to address the board in executive session, and direct respondent Stellar to recommend that the board reimburse her for the attorney’s fees she paid in defending herself in the trespass action.

Respondents argue that petitioner’s appeal is precluded by the settlement agreement, in which she released the district from all claims, and that her claims are moot. They also assert that the appeal is untimely and petitioner lacks standing to enforce the board’s policy regarding the superintendent’s conduct. Respondents further claim that the Commissioner lacks the authority to order the board to allow petitioner to speak at an executive session or to direct the superintendent to recommend that the board pay petitioner’s attorney's fees.

Before reaching the merits, I will address several procedural issues. To the extent that petitioner seeks to address actions taken by the superintendent before and at the time of the trespassing charge, the appeal is untimely. An appeal to the Commissioner must be brought within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Thus, petitioner may not now challenge actions the superintendent took in 1997 and 1998.

Petitioner has asked me to direct the board to hold the superintendent accountable under the standards contained in board policy 2240. Petitioner has not, however, joined the board as a party to this appeal. To join an entity as a party to an appeal, that body must be named as a respondent, served with the petition and notice of petition, and afforded an opportunity to defend its interests (Appeal of Board of Education of the Ardsley UFSD, 38 Ed Dept Rep 221, Decision No. 14,019). It is the notice of petition which alerts a party that it is required to appear in the appeal and answer the allegations contained in the petition (Appeal of Heller, 38 Ed Dept Rep 335, Decision No. 14,048; Appeal of Chechek, 37 id. 624, Decision No. 13,943). Because the rights of the board as a whole would be adversely affected if I were to grant the requested relief, this claim must be dismissed for failure to join a necessary party (Appeal of Kurlans, et al., 37 Ed Dept Rep 293, Decision No. 13,861).

Moreover, the November 30, 1998 settlement agreement, in which petitioner released the school district, its board of education, officers, employees and agents from any and all claims, past and present, that had been or could have been asserted against it, precludes this appeal. Petitioner’s December 2, 1998 letter to respondent Stellar clearly indicates that her complaints to him were based on events surrounding the trespassing charge. The same is true of her January 4, 1999 letter to respondent Van Kleeck. Petitioner could, and should, have raised her request for attorney’s fees and board action during the settlement negotiations so that these matters were addressed in the agreement. Instead, petitioner signed a complete release covering any and all claims against the district, its board, officers, employees, and agents arising from the trespassing charge. She did not reserve the right to proceed in any other forum or to seek attorney’s fees or any other relief. Thus the agreement resolves all the claims asserted in petitioner’s letters dated December 2, 1998 and January 4, 1999 and leaves no live controversy for my review (compare Appeal of Soukey, 38 Ed Dept Rep 626, Decision No. 14,106). Accordingly, those claims must be dismissed.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. First, the basis of petitioner’s appeal appears to be her unhappiness that the interim principal and the superintendent were not disciplined for their behavior toward her. However, a board of education has broad discretion in determining whether disciplinary action against employees, like the interim principal and the superintendent, is warranted, so long as it has a reasonable basis to support its conclusion (Appeal of Catherine B., 37 Ed Dept Rep 34, Decision No. 13,797; Appeal of Rivenburg, 35 id. 27, Decision No. 13,451; Appeal of Allert, 32 id. 538, Decision No. 12,909). I find no basis in the record to conclude that the board acted unreasonably here.

Education Law "1708(3) and Public Officers Law "105(2) permit boards of education to allow non-members to attend executive sessions (Appeal of Whalen and Ehlman, 34 Ed Dept Rep 282, Decision No. 13,310). Those provisions do not, however, require such access. Boards of education have the right to formulate and control the agenda at school board meetings (Appeal of Kushner, 31 Ed Dept Rep 351, Decision No. 12,663; Appeal of Davidson, 29 id. 24, Decision No. 12,210). Thus, respondent Van Kleeck acted within his discretion in denying petitioner permission to address the board in executive session. I note that the record indicates that petitioner has appeared at numerous public sessions of the board.

Finally, it is well settled that the Commissioner of Education lacks jurisdiction to award attorney’s fees pursuant to Education Law "310 (Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 127, Decision No. 14,192; Appeal of Silano, 33 id. 20, Decision No. 12,961; Appeal of Martin, 31 id. 441, Decision No. 12,692). Accordingly, I will not direct respondents to recommend that the board make such an award.