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Decision No. 14,773

Appeal of JOSEPH P. SIMMS from action of the Board of Cooperative Educational Services for the First Supervisory District of Erie County; Donald A. Ogilvie, District Superintendent; Susan L. Borowick-Gibson; Darron E. Lazzaro; Joseph J. Meyer, Jr. and the Williamsville Central School District regarding an involuntary transfer.

Decision No. 14,773

(August 12, 2002)

Stafford D. Ritchie, II and Lindy Korn, Esqs., attorneys for petitioner

David A. Hoover, Esq., attorney for respondents BOCES and Donald A. Ogilvie

Hodgson Russ LLP, attorneys for respondent Williamsville Central School District, John J. Christopher, Esq., of counsel

Cate, Acting Commissioner.--Petitioner challenges various actions of the Board of Cooperative Educational Services for the First Supervisory District of Erie County ("respondent BOCES" or "BOCES") and Donald A. Ogilvie, District Superintendent ("respondent Ogilvie") regarding his transfer from the BOCES" Alternative Learning Program High School to the suspension room at its Dexter Terrace facility. The remaining named respondents are science teachers employed by BOCES. The appeal must be dismissed.

Petitioner, a tenured science teacher, taught science courses at the Alternative Learning Program High School from September 1, 1993 until the fall of 1999. On or about October 22, 1999, he received notice by fax that respondent Ogilvie had placed him on administrative leave with pay pending the investigation of allegations that petitioner had violated BOCES" policy on sexual harassment.

Petitioner met with BOCES" director of personnel services on November 3, 1999 for questioning regarding the allegations, as instructed in the director"s November 1, 1999 letter. By letter dated November 30, 1999, the director advised petitioner that BOCES found he had violated its sexual harassment policy. The director instructed petitioner to report to BOCES" Employee Assistance Program to seek counseling and to sign a release that would grant the director access to information about his "progress in the program." The director further stated that BOCES would invoke Article 2.09A of its collective bargaining agreement with the Erie 1 Professional Education Association. That provision permitted the district superintendent to discipline tenured staff members by imposing a reprimand, a penalty of up to $1000 or a suspension without pay for a period of up to 10 days. Article 2.09A further provided that employees could accept the penalty or seek arbitration. Article 2.09B governed situations where the district superintendent sought to impose suspensions of more than 10 days, fines of more than $1000 or dismissal. It permitted employees to elect the disciplinary procedures set forth in Education Law "3020-a or a hearing before an arbitrator, or to waive any hearing. The agreement expired on June 30, 2002.

Petitioner received another notice from the director dated January 7, 2000. This document alleged that petitioner engaged in conduct unbecoming a teacher and demonstrating immoral character and listed six specifications describing particular instances of allegedly improper conduct. The notice stated that, after investigation, the director concluded that petitioner was guilty of all six specifications. It again directed him to contact the Employee Assistance Program for referral to counseling. The director stated that the district superintendent had decided to impose a fine of $750. He also instructed petitioner to report to BOCES" Student and Family Support Services Division to serve on special assignment "until such time that it is determined that you are able to resume your duties as a classroom teacher." Petitioner remained "on special assignment" through the end of the 1999-2000 school year.

By letter dated January 20, 2000, petitioner notified BOCES that he neither accepted the penalty nor agreed with the results of the investigation. Another meeting to discuss the charges took place on March 7, 2000. By notice dated March 28, 2000, petitioner advised respondent that he elected to have the procedures set forth in Education Law "3020-a apply in any disciplinary proceedings.

Petitioner and BOCES officials met again on June 23, 2000. A memorandum from respondent Ogilvie was delivered to petitioner at that meeting. In spite of the two prior letters from the director stating that an investigation revealed petitioner had violated the sexual harassment policy and was guilty of the charged misconduct, this new memorandum purported to set forth the results of BOCES" investigation into the allegations of sexual harassment. In this memorandum, respondent Ogilvie stated:

"I have concluded that there is insufficient proof to proceed with disciplinary action against you under Education Law Section 3020-a at this time. However, I nonetheless determine that during the Fall 1999 semester, you exercised extremely poor judgment in carrying out your professional responsibilities".

Respondent Ogilvie directed petitioner to comply with district policies in the future and to conduct himself professionally at all times. The memorandum also stated:

Finally, I have determined that as of September 1, 2000, you shall be involuntarily transferred from your current assignment"to the suspension room at Dexter Terrace. This transfer should not be construed as disciplinary action, but is being made in the best interests of the educational program.

The personnel director advised petitioner that the transfer could not be appealed to the BOCES board. Petitioner"s counsel made two written requests for reconsideration of the transfer. By letter dated September 29, 2000, the personnel director stated his belief that the transfer was not made for disciplinary reasons and that petitioner was not assigned outside his tenure area. He noted that petitioner was entitled to prepare a written response to the June 23, 2000 letter from respondent Ogilvie for inclusion in his personnel file.

Petitioner commenced this appeal on or about March 19, 2001. He later was returned to his original teaching position at the Alternative Learning Program High School for the 2001-2002 school year. Petitioner contends that he was improperly assigned to work outside his tenure area without his consent, that he has been disciplined without regard to his due process rights under Education Law "3020-a and that BOCES does not provide adequate instruction to students assigned to the suspension room. He claims that respondent Ogilvie should be removed because his treatment of petitioner and his operation of the suspension room amount to willful violations of the law. Petitioner also asks me to annul the findings of "guilt" and his transfer, direct respondents to expunge all references to the allegations and the transfer from his records, void Article 2.09A of the collective bargaining agreement and enjoin operation of the suspension room.

Respondents BOCES and Ogilvie assert that: the appeal is untimely; petitioner lacks standing to bring claims regarding the instruction provided in the suspension room; the Commissioner lacks jurisdiction to annul a contract provision and that petitioner failed to join a necessary party. They further argue that petitioner"s reassignment to the Alternative Learning Program High School renders his claims moot. They also contend that they properly transferred petitioner and that they operate the suspension room in accordance with governing law and regulations. Respondent district contends that it has complied with the law in all respects, that the appeal is untimely and that petitioner lacks standing to assert claims against the district.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days of the action or decision complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16). Here, respondent BOCES notified petitioner of its determination that he violated the sexual harassment policy on or about November 30, 1999. It notified him that he was transferred to the suspension room by letter dated June 23, 2000, and he began work in the suspension room on September 6, 2000. Respondent replied to petitioner"s request for reconsideration on September 29, 2000. Petitioner, however, did not commence this appeal until March 16, 2001, considerably more than 30 days after the actions and decisions complained of, and failed to offer an explanation for the delay. Accordingly, the appeal must be dismissed as untimely. Moreover, petitioner acknowledges that his claims regarding his transfer became moot when he was returned to his original teaching position at the Alternative Learning Program High School.

Petitioner also lacks standing to bring claims against respondents regarding the instruction provided in the suspension room. 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 (Appeal of Allen and Wong, 40 Ed Dept Rep 372, Decision No. 14,501; Appeal of Murphy, 39 id. 562, Decision No. 14,311). Petitioner is neither a student assigned to the suspension room nor the parent of such a student. Accordingly, he lacks standing to challenge the instruction provided there.

Because the appeal has been dismissed on procedural grounds, I need not address the parties" remaining contentions.