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Decision No. 14,538

Appeal of DENISE W., on behalf of JONATHAN W., from action of the Board of Education of the Hoosick Falls Central School District regarding the refusal to bring disciplinary action against a teacher and board policies relating to disciplining teachers.

Decision No. 14,538

(February 15, 2001)

Gunter Dully, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Hoosick Falls Central School District ("respondent") to bring disciplinary charges against a tenured teacher and its alleged failure to have a policy which addresses disciplinary actions against teachers who violate a rule for the maintenance of public order on school property. The appeal must be dismissed.

This appeal results from two incidents. The first occurred on March 15, 2000 between a tenured teacher employed by respondent and petitioner's son, who was a sixth grade student in respondent's schools. The second occurred the next day, between the same teacher and petitioner's husband during a parent conference. Because of these two incidents, petitioner, in a letter dated March 19, 2000, requested that respondent bring disciplinary action against the tenured teacher, pursuant to Education Law "3020-a, and that the teacher be dismissed.

Before beginning disciplinary procedures, respondent directed its attorney to attempt to settle the matter through negotiations with the teacher's attorney. Those negotiations failed. Consequently, respondent's attorney prepared a statement of charges, based on petitioner's complaint, and petitioner signed the statement of charges on June 8, 2000. On June 12, 2000, respondent considered whether probable cause existed to warrant the initiation of "3020-a disciplinary proceedings. A majority of respondent board did not find probable cause.

By letter dated June 14, 2000, respondent's Superintendent of Schools, Nancy B. Chase, advised petitioner that respondent found no probable cause to bring a disciplinary proceeding against the teacher. By letter dated July 12, 2000, the teacher resigned from district service, effective August 1, 2000, in order to retire.

Based on these facts, petitioner's claim regarding respondent's refusal to take disciplinary action against the teacher must be dismissed as moot. Because this claim is being dismissed on procedural grounds, it is unnecessary to detail each party's version of the incidents of March 15 and 16, 2000.

Section 3020(1) of the Education Law provides that no person enjoying the benefits of tenure may be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in Education Law "3020-a or an alternative procedure agreed upon by the parties as a result of collective bargaining. Accordingly, "3020-a specifies the procedures that a school district must follow to discipline a tenured teacher while the tenured teacher is employed by the school district. These procedures do not pertain to individuals who are no longer employed by the school district.

It is well settled that that 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 McCart, et al., 39 Ed Dept Rep 534, Decision No. 14,302; Appeal of Roberts, 38 id. 68, Decision No. 13,984; Appeal of Mangaroo, 37 id. 578, Decision No. 13,932). In addition, the Commissioner will not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law "310 (Appeal of Weiss, 39 Ed Dept Rep 69, Decision No. 14,176; Appeal of Lambert, 37 id. 599, Decision No. 13,937). Petitioner requests that I reverse respondent's refusal to take disciplinary action against the tenured teacher, pursuant to "3020-a of the Education Law. This remedy is no longer available. Such disciplinary action may no longer be brought against this individual because he is retired and no longer employed by respondent’s district. Accordingly, this claim is moot.

In the petition, petitioner states in general terms that she requested from the district its policy, required under "2801 of the Education Law, addressing disciplinary actions against teachers who violate a rule for the maintenance of public order on school property, and that the district did not provide it. Petitioner states in the petition that while respondent did provide her with policies in response to this request, these policies do not in fact address teacher misconduct. Respondent denies these allegations. Petitioner fails to include as exhibits in her petition the policies that the district did provide to her. Petitioner provides no documentary evidence in her petition to support a claim that respondent violated the requirements of Education Law "2801.

Petitioner attempts to buttress this claim by adding arguments and an exhibit in her reply. 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). It is not meant to buttress allegations in the petition or add assertions or exhibits that should have been part of the petition (Appeal of McCart, et al., supra; Appeal of Krantz, 38 id. 485, Decision No. 14,077). Therefore, while I have reviewed petitioner's reply, I have not considered the additional arguments and the exhibit submitted in reference to the claim that respondent violated Education Law "2801, all of which should have been in the petition.

In an appeal to the Commissioner, petitioner bears the burden of establishing the facts upon which he or she seeks relief (8 NYCRR "275.10; Appeal of Baker, 39 Ed Dept Rep 690, Decision No. 14,350; Appeal of Shufelt, 38 id. 274, Decision No. 14,032). On the record before me, petitioner has failed to establish a factual basis for the claim that respondent violated the requirements of Education Law "2801.