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Decision No. 14,498

Appeal of CINDY and DONALD G. ANSLOW, JR., on behalf of CASSAUNDRA and CRYSTEN ANSLOW; LISA HAINA, on behalf of THOMAS HAINA; MARTY and LISA WELCH, on behalf of JACINDA WELCH; DEBORAH BUHLER, on behalf of MARY BUHLER; and NONA and ANTHONY TALARICO, on behalf of PETER TALARICO, from action of the Board of Education of the Schroon Lake Central School District regarding failure to discipline a teacher.

Decision No. 14,498

(November 30, 2000)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the refusal of the Board of Education of the Schroon Lake Central School District ("respondent") to terminate the services of a probationary teacher. The appeal must be dismissed.

Petitioners, the parents of students in Wendy Paul's sixth grade class during her two years of probationary service at Schroon Lake Central School (1998-99 and 1999-2000), allege that she acted inappropriately in the classroom on several occasions. Petitioners allege that Ms. Paul's actions were degrading and insulting to students and that one student suffered physical symptoms of anxiety directly related to her classroom situation. Petitioners also contend that Ms. Paul failed to follow school policy regarding notification of the parents of students who receive failing grades and who fail to turn in work assignments.

After an incident involving her daughter Crysten, petitioner Cindy Anslow expressed her concerns to then Superintendent Thomas Jones, who met with her on February 17, 2000. (Superintendent Jones retired on June 30, 2000.) On February 24, 2000, respondent invited petitioner Cindy Anslow and other parents to address the board with their concerns. In response to the parents' requests, respondent agreed to make counseling available to the students in Ms. Paul's class and to investigate their allegations.

Following an investigation, Superintendent Jones determined that three of the parents' allegations against Ms. Paul had merit. On March 9, petitioner Cindy Anslow and other parents again met with respondent, who informed them that the details of the completed investigation were confidential and that it would not suspend Ms. Paul at that time. By letter dated March 13, 2000, Superintendent Jones informed Ms. Paul that he intended to recommend that respondent terminate her probationary appointment at the April 13 meeting. In the interim, respondent met with Ms. Paul on March 30, at which time she denied all allegations against her. Four parents, two teachers and two teacher aides also voiced their support of Ms. Paul at that meeting. After considering petitioners' statements and documents, Superintendent Jones' report, the statements by Ms. Paul, other parents and staff, the classroom observations of Ms. Paul over a two-year period and her contributions to the district, respondent voted at its April 13, 2000 meeting to reject Superintendent Jones' recommendation to terminate Ms. Paul's probation and determined to permit her to complete her probationary period in the 2000-2001 school year.

By letter dated May 21 and again at respondent's May 25, 2000 meeting, petitioner Cindy Anslow asked respondent to reconsider its determination. By letter dated June 12, 2000, respondent's president informed petitioners Cindy and Donald Anslow that respondent would not reconsider its vote. This appeal ensued on July 7, 2000.

Petitioners contend that Ms. Paul is detrimental to their children's self-esteem and ability to learn. Petitioners allege violations of the Family Court Act, the Penal Law, Human Rights Laws and Social Service Laws. Petitioners seek the removal of five members of respondent board and the termination of Ms. Paul's employment at Schroon Lake Central School.

Respondent asserts that the petition fails to state a claim upon which relief may be granted, fails to join necessary parties, is untimely and moot. Respondent also asserts that respondent acted appropriately and that the Commissioner lacks jurisdiction in proceedings under the Family Court Act, the Penal Law and the Human Rights Law.

As a preliminary matter, petitioners set forth for the first time additional allegations and exhibits in their reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "275.3 and "275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions or exhibits that should have been in the petition (Appeal of McCart, et al., 39 Ed Dept Rep 534; Decision No. 14,302). Petitioners make no effort to demonstrate that the new material contained in the reply was unavailable at the time the petition was filed. Therefore, while I have reviewed petitioners' reply, I have not considered those portions that contain new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed because of petitioners' failure to join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioners is a necessary party and must be joined as such (Appeal of MacKay, 39 Ed Dept Rep ___, Decision No. 14,391; Appeal of Heller, 38 id. 335, Decision No. 14,048). An individual must be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Heller, supra). It is the notice of petition which alerts a party to the fact that he or she is required to appear in the appeal to answer the allegations contained in the petition (8 NYCRR "275.11, 275.13; Application of the Board of Education of the Ardsley Union Free School District, 38 Ed Dept Rep 221, Decision No. 14,019). Petitioners challenge respondent's decision to retain Ms. Paul as a teacher. Since Ms. Paul's rights would be adversely affected by a determination in petitioners' favor, their failure to join her requires dismissal of this appeal.

Petitioners also seek the removal of respondent's President Bruce Murdock, Vice President Donald Miller, and members Martha King, Roger Sachlaben and Thomas Headlee. Since petitioners seek their removal in addition to seeking review of respondent's actions as a whole, these members of respondent board are clearly necessary parties, as their interests would be adversely affected if I were to decide in petitioners' favor (Appeal of Looman, 39 Ed Dept Rep 370, Decision No. 14,262). None the these individuals has been properly named as a respondent in the notice of petition and in the petition, and the notice of petition fails to state that removal of any individual is sought as required by 8 NYCRR "277.1. Accordingly, the petition must also be dismissed for petitioners' failure to join the above-named board members.

The appeal must also be dismissed as moot. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Dale C., 40 Ed Dept Rep ___, Decision No. 14,423; Appeal of Schuler, 37 id. 512, Decision No. 13,915). The term of respondent's Vice President Donald Miller ended on June 30, 2000, and he is no longer a member of respondent board. Furthermore, on July 24, 2000, Ms. Paul notified the district that she had accepted a teaching position in another district and resigned her position, effective August 31, 2000. Accordingly, since Ms. Paul is no longer a district employee, the appeal must be dismissed.

In view of the foregoing disposition, I need not address the parties' remaining contentions. With respect to respondent's request for a certificate of good faith pursuant to Education Law "3811(1), in view of the fact that petitioners' appeal must be dismissed for the reasons set forth above, I certify that respondent appears to have acted in good faith.