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Decision No. 14,739

Appeal of JEAN C. LANE, VIVIAN SHEEHAN, MIRIAM DOUGENIS and DONALD L. KATES from action of the Board of Education of the Sag Harbor Union Free School District regarding alleged political activities.


Decision No. 14,739

(June 19, 2002)


Guercio & Guercio, attorneys for respondent, Thomas Volz, Esq., of counsel


MILLS, Commissioner.--Petitioners challenge the actions of the Board of Education of the Sag Harbor Union Free School District ("respondent") regarding alleged political activities by its superintendent and principal. The appeal must be dismissed.

On September 21, 2001, respondent"s superintendent attended a Village of Sag Harbor ("village") board meeting. At that meeting, she spoke publicly in support of Sag Harbor"s police chief. Petitioners, who are residents of respondent"s district, contend that the superintendent improperly spoke on behalf of the school district and was quoted in the newspaper as supporting the police chief. Petitioners also allege that the elementary school principal advised a group of parents that they should attend a village meeting to show support for the police chief.

By letter dated October 29, 2001, petitioners objected to the alleged use of district employees and facilities for political purposes and asked that respondent reprimand administrators, teachers, other district personnel and parents and prohibit further use of the district schools for partisan political purposes. They also requested that respondent send a letter to the local newspaper clarifying the proper use of district schools for programs and activities. By letter dated November 1, 2001, respondent notified petitioners that their request would be discussed at the board"s November 26, 2001 meeting.

On November 26, respondent discussed petitioners" complaints, determined that nothing improper occurred and declined to take further action. By letter dated November 29, 2001, petitioners asked respondent to confirm its position in a letter. After respondent failed to reply, this appeal ensued.

Petitioners assert that the actions by the superintendent and principal were improper and violated district policy. Petitioners request that I review respondent"s policy regarding the use of school facilities and personnel for political activity and direct respondent to clarify that policy. Petitioners also request that I order respondent to establish a mandatory program of instruction for board members, administrators, teachers and parents regarding prohibited political activities in the schools.

Respondent contends that the petition is untimely and fails to state a claim upon which relief may be granted. Respondent denies that the superintendent spoke on behalf of the school district and alleges that the newspaper articles submitted by petitioners are not accurate representations of what actually occurred. Respondent asserts that the principal merely told parents about the village board meeting and did not voice a position. Respondent argues that the superintendent"s and principal"s actions were within their constitutional First Amendment rights and that the board policies referenced by petitioner are not relevant to this appeal.

Initially, I must address several procedural issues. Petitioners attempt to buttress their claims by adding arguments and exhibits to their 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 (Application of Kavitsky, 41 Ed Dept Rep __, Decision No. 14,672; Appeal of O'Herron, 41 id. ___, Decision No. 14,591; Appeal of Denise W., 40 id. ___, Decision No. 14,538). Therefore, while I have reviewed petitioners" reply, I have not considered the additional arguments and exhibits.

Petitioners also belatedly submitted a letter rearguing the points raised in the petition, to which respondent objects on several grounds, including its contention that petitioner Lane has moved out of the district and no longer has standing. Petitioner Lane responded with another letter contending that, while she has moved out of the district, she has standing because she was a district resident when the actions complained of occurred. The regulations of the Commissioner permit parties to submit additional affidavits and exhibits, but only with the prior permission of the Commissioner (8 NYCRR "276.5). Petitioners" letters were not submitted in accordance with "276.5. Therefore, I have not considered the letters or respondent"s letter countering petitioner Lane"s arguments.

Respondent contends that the petition should be dismissed as untimely. An appeal to the Commissioner must be commenced 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). From the record before me, it appears that respondent addressed petitioners" complaint on November 26, 2001. Petitioners originally commenced this appeal on December 18, 2002, within 30 days of that meeting. The original petition contained several procedural defects which petitioners corrected within the time period specified by my Office of Counsel. Therefore, I will not dismiss the appeal as untimely.

In an appeal to the Commissioner, petitioners bear the burden of establishing all of the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Estro, 41 Ed Dept Rep __, Decision No. 14,698; Appeal of Boiko, 40 id. ___, Decision No. 14,513) and demonstrating a clear legal right to the relief requested (Appeal of Estro, supra; Appeal of Boiko, supra). Petitioners have failed to meet this standard. In this case, petitioners have not submitted any reliable evidence to support their allegations. They have relied solely upon copies of articles from local newspapers to establish the alleged actions of the superintendent and principal. It is well settled that newspapers do not constitute proof of any of the facts stated therein (Appeal of Carbone and Mastropietro, 41 Ed Dept Rep ___, Decision No. 14,679; Appeal of Laskas-Gillespie, 40 id. ___, Decision No. 14,559; Appeal of Shravah, et al., 36 id. 396, Decision No. 13,760).

Moreover, the superintendent states in her affidavit that she spoke in her individual capacity, not as a representative of the school district. A public employee in a policy-making position may be subject to certain restrictions on public speech where the statement "impairs discipline by supervisors or harmony among coworkers, has a detrimental impact on close working relationships"or impedes the performance of the speaker["s] duties or interferes with the regular operation of the enterprise" (McCullough v Wyandanch Union Free School District, 132 F.Supp.2d 87 [E.D.N.Y. 2001] citing Lewis v Cowen, 165 F.3d at 162). However, petitioners have not established that the superintendent"s statements had any of these effects or that her statements were not, in fact, protected speech.

Finally, the principal states in her affidavit that she merely announced the meeting in question and did not make any statements that advocated a particular position regarding the police chief. As indicated above, petitioners have failed to submit any credible evidence to support their allegations against the principal on this point.