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Decision No. 14,575

Appeal of EDMUND J. WIATR, JR., from action of Daniel G. Lowengard, Superintendent, and Keith Heinrich, President of the Board of Education of the City School District of the City of Utica regarding the refusal to hold a meeting.

Decision No. 14,575

(May 21, 2001)

Donald R. Gerace, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner appeals the refusal of Daniel G. Lowengard, Superintendent ("respondent Lowengard"), and Keith Heinrich, President of the Board of Education ("respondent Heinrich"), of the City School District of the City of Utica, to meet with petitioner concerning allegations of wrongdoing by a district administrator. The appeal must be dismissed.

On or about November 16, 2000, petitioner sent separate letters to both respondents. In the letter to respondent Lowengard, petitioner raised nonspecific allegations of abuse of power, sexual harassment, civil rights violations, coercion <sic> of test scores, fraudulent attendance records and cocaine use by an unnamed district administrator. Petitioner requested that respondent Lowengard immediately schedule a meeting to discuss these issues, so that petitioner could ascertain what steps Mr. Lowengard had taken to investigate these charges and who had been assigned to investigate the allegations. Petitioner also sought a copy of the investigation results. The letter demanded a response from Mr. Lowengard within five days.

Respondent Lowengard replied by letter dated November 20, 2000. He advised petitioner that the November 16 letter appeared to relate to allegations that were already the subject of two labor contract arbitrations, two complaints to the Equal Employment Opportunity Commission and two separate notices of claim pursuant to General Municipal Law "50-h. In those pending proceedings, the district was already seeking specific information about the allegations, which had not yet been provided. In light of the pending proceedings, respondent Lowengard stated that it would be inappropriate for the board of education to meet in executive session with petitioner or anyone else to discuss these matters. To the extent the November 16 letter concerned other matters, respondent Lowengard requested that petitioner specify those concerns in writing. The record does not reflect any response by petitioner to indicate that his November 16 letter concerned matters other than those already subject to pending proceedings, prior to the commencement of this appeal.

The November 16 letter to respondent Heinrich stated that, despite petitioner's two telephone calls and follow-up letters in the previous three weeks regarding allegations about the unnamed district administrator, Mr. Heinrich had still not replied with information indicating what action, if any, would be entertained by the board of education. Petitioner requested a response within 5 days.

Respondents declined to meet with petitioner, and this appeal ensued. Petitioner alleges that respondents have failed to exercise their responsibilities and are involved in a conspiracy of silence to protect the district administrator; that, in making decisions about termination of probationary employment, respondent Lowengard applies a higher standard of proof of wrongdoing against male administrators and a lower standard of proof against female teachers; and that respondent Lowengard refuses to advertise teaching and support position vacancies through the local newspaper. Petitioner seeks an order directing respondents to initiate an investigation of the district administrator; directing the board of education to hold an informal meeting with all parties to "tell their respective stories" and to discipline district employees who are guilty of a conspiracy of silence; directing the board to advertise all school vacancies with the Observer-Dispatch and similar newspapers within a 50-mile radius; directing the board to remove the designated district Title IX Compliance Officer from investigation of all sexual harassment complaints and appoint an independent third party to investigate such complaints; directing the board to withhold tenure to administrators who are the subject of review or investigation until completion of the matter, or suspending such administrator prior to granting tenure until the matter is resolved; and directing the board to forward to the Oneida County District Attorney the results of any investigation that appears to indicate criminal actions. The petition also purports to seek interim relief, but the notice of petition did not provide the requisite notice to respondents (8 NYCRR "276.1) so I did not consider this request.

Respondents deny the allegations raised by petitioner, and contend that it was reasonable and prudent for them to refuse to meet in executive session with petitioner due to the pendency of the other legal claims and proceedings. Respondents further contend that petitioner has no right to demand to meet with the board in executive session; that the district conducted an investigation of the allegations against the district administrator and found no factual support for the allegations; and that the district advertises teaching vacancies in local newspapers as well as other venues. Respondents also raise three procedural objections - that petitioner lacks standing, that the petition does not comply with the requirements of 8 NYCRR "275.10, and that petitioner has elected remedies by pursuing other avenues of review of these same allegations.

Prior to considering the procedural objections, I must address two matters concerning documents submitted by the parties. I will accept petitioner's reply and also a document captioned as a "motion to strike" the affidavits submitted by respondents. 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 add belatedly assertions that should have been in the petition (Appeal of Eckert, 40 Ed Dept Rep ___, Decision No. 14,520; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Although the Commissioner's regulations do not contemplate motions in appeals brought pursuant to Education Law "310 (Appeal of Alfano, et al., 39 Ed Dept Rep 229, Decision No. 14,224), I find that the purported "motion" addresses matters raised in the answer and responding affidavits and thus falls within the general category of a reply. I have consistently held that where, as here, a petitioner is proceeding without representation by counsel, a liberal interpretation of the rules is appropriate, particularly when respondent has presented no evidence of prejudice (Appeal of Cieslik, et al., 40 Ed Dept Rep ___, Decision No. 14,478; Appeal of Smith, 40 id. ___, Decision No. 14,452). However, I will not consider a third document submitted by petitioner, which is a copy of a complaint against an attorney that was filed with an outside office that investigates such complaints, because the document does not conform to the requirements for a reply as set forth in "275.14. Furthermore, I decline to accept such additional document under "276.5 of the Commissioner"s regulations.

I reject petitioner's contention that respondents' affidavits must be disregarded because they were not sworn or verified. The record shows that original affidavits received by my Office of Counsel from respondents were properly signed and sworn to before a notary public. As to petitioner's arguments in the "motion to strike" against the content of the affidavits, I will give each document in the record due consideration based upon its contents.

I will next address the procedural objections raised by respondents. Respondents first contend that petitioner lives outside the district, and petitioner is thus not a resident taxpayer. Based on the record before me, I must disagree. Petitioner specifically states that his address is within the district, and avers that he has been a district taxpayer for five years. Respondents do not counter these assertions with tax maps or other proof to show that the specific address submitted by petitioner is not within the district.

Second, respondents contend that petitioner lacks standing because he is not an employee of the district or parent of any students attending school in the school district, and petitioner has not shown that he has suffered any injury. I agree that petitioner lacks standing to raise claims regarding the investigation of allegations against the administrator, the general procedures used to investigate alleged wrongdoing by district employees, the standards established by the board of education regarding the termination of probationary employees, or the advertisement of teacher vacancies. Pursuant to Education Law "310, an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Gaul, et al., 40 Ed Dept Rep ___, Decision No. 14,432; Appeal of Lucente, 39 id. 244, Decision No. 14,227; Appeal of Morris, et al., 38 id. 427, Decision No. 14,066). Neither status as a resident of a district nor as a parent of a student in the district automatically confers on an individual the capacity to seek review of personnel actions by the board of education (Appeal of Zaleski, 40 Ed Dept Rep ___, Decision No. 14,468; Appeal of Gaul, supra; Appeal of Woodward, 36 Ed Dept Rep 445, Decision No. 13,773). Rather, to maintain an appeal, an individual must also be aggrieved in the sense that he or she has suffered personal damage or injury to his or her rights (Appeal of Farago, 40 Ed Dept Rep ___, Decision No. 14,450; Appeal of Gaul, supra; Appeal of Morris, et al., supra).

In the instant appeal, other than conclusory allegations that he is affected as a taxpayer due to possible expenditures by the school district or increased potential of liability due to district actions, petitioner fails to establish that he is personally injured by actions challenged in the appeal regarding the district"s personnel investigations, advertising of vacancies, or discipline and tenure decisions. These claims must therefore be dismissed. However, petitioner also claims that he has a right to demand an executive session meeting with the board, and, if true, denial of this alleged right would afford standing to challenge the denial. I will therefore address the merits of this contention.

Petitioner asserts that he has a right to demand to meet with the board of education in executive session to discuss the board's investigation of personnel matters. I disagree. There is no unqualified right of a district resident to address the board at its public meetings (Appeal of Michalski, 33 Ed Dept Rep 505, Decision No. 13,130; Appeal of Martin, 32 id. 381, Decision No. 12,861; Appeal of Wittneben, 31 id. 375, Decision No. 12,671), much less demand a closed executive session (Education Law "1708[3]). Similarly, there is no absolute right to demand a meeting with the superintendent or other school administrator to discuss discipline matters or investigations involving other employees of the district.

I also find that respondents had reasonable cause to defer from meeting with petitioner, due to the pendency of a number of other claims and legal actions involving what appeared to be the same subject matter. The superintendent invited petitioner to show that the matter he wanted to discuss was not related to these pending actions, but the record does not reflect that petitioner's concerns were in fact unrelated to the pending matters. I therefore find no basis to substitute my judgment for that of respondents.

In view of the foregoing disposition, I need not address the remaining claims raised by petitioner or procedural objections raised by respondents.