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Decision No. 15,009

Appeal of DIONE GOLDIN from action of the Board of Education of the Wappingers Central School District and Superintendent Wayne F. Gersen regarding a contract.


Decision No. 15,009


(January 6, 2004)


Raymond G. Kuntz, P.C., attorneys for respondents, Raymond G. Kuntz and Thomas Scapoli, Esqs., of counsel


MILLS, Commissioner.--Petitioner challenges the terms of a contract between former Superintendent Wayne F. Gersen ("Gersen") and the Board of Education of the Wappingers Central School District ("the board").  The appeal must be dismissed.

The board entered into an initial contract with Gersen effective July 1, 1997 through June 30, 2002.  In June 1998, and at the end of each subsequent year, the board entered into a new five-year contract with Gersen.  The final contract was executed on June 20, 2001 for the period July 1, 2001 through June 30, 2006 ("2001 contract").  In March 2002, Gersen notified the board of his intent to resign, effective June 30, 2002.  Petitioner commenced this appeal on June 25, 2002.  Petitioner"s request for interim relief was denied on July 22, 2002.

Petitioner seeks to rescind the 2001 contract because she alleges that it provides additional compensation to Gersen without additional benefit to the board and is therefore an improper gift of public monies prohibited by Article VIII, section 1 of the New York State Constitution.  Petitioner alleges specifically that: "8 of the contract increased the cost of an annual insurance stipend from $2,100 to $3,525; "10.1 reduced from 10 to 5 the number of years Gersen must serve the district before becoming eligible for lifetime health benefits; and "10.2 requires the district to pay $2,500 annually for dental insurance.  Petitioner also alleges that Gersen failed to carry out his contractual duties and responsibilities in a number of ways during his term and by resigning prematurely.

Respondents assert that the petition is untimely, that petitioner lacks standing, and that the Commissioner lacks jurisdiction over many of the claims regarding Gersen"s performance.

I will first address several preliminary issues.  On July 13, 2002, petitioner objected to respondents" Affidavit in Opposition to Application for Stay ("opposition"), asserting that respondents" request for an extension of time within which to submit the opposition was untimely and that the copy served upon her lacked attachments.  Simultaneously, petitioner requested permission to submit an additional affidavit in response to the opposition pursuant to "276.5 of the Commissioner"s regulations.  On August 14, 2002, petitioner again requested permission to submit additional exhibits.

Pursuant to "276.1 of the Commissioner"s regulations, an affidavit in opposition to an application for a stay "shall be served on all other parties . . . within three business days after service of the petition, unless the Commissioner shall provide otherwise."  Respondents requested and were granted an extension of time.  Therefore, I have accepted respondents" opposition as part of the record.  Because petitioner"s July 13, 2002 affidavit was received before her time to reply to the answer expired, I have considered it in this appeal.

However, I have not considered the exhibits submitted by petitioner on August 14, 2002.  These exhibits consist of minutes of various board meetings dating from June 1998 to June 2001.  Although petitioner states that she belatedly discovered these exhibits or was not given earlier access to them, I find her explanation unsatisfactory.  Petitioner has failed to demonstrate that minutes from board meetings occurring one to four years prior to the service of the petition could not have been obtained in time to be included in the petition (See, Appeal of R.W., 40 Ed Dept Rep 671, Decision No. 14,580).

Petitioner also sets forth additional arguments in her reply and memorandum of law.  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 Russo, 41 Ed Dept Rep 182, Decision No. 14,657; Appeal of Krantz, 38 id. 485, Decision No. 14,077).  Similarly, a memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of DeCastro, 41 Ed Dept Rep 415, Decision No. 14,730; Appeal of D.C., 41 Ed Dept Rep 190, Decision No. 14,661).  Therefore, while I have reviewed petitioner"s reply and memorandum, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

An individual may not maintain an appeal to the Commissioner unless aggrieved in the sense that she has suffered personal damage or injury to her civil, personal or property rights.  Only persons who are directly affected by the action being appealed have standing (Appeal of DeCastro, supra; Appeal of Allen and Wong, 40 Ed Dept Rep 372, Decision No. 14,501; Appeal of Murphy et al., 39 id. 562, Decision No. 14,311).  Status as a resident of a school district does not, in and of itself, confer standing to challenge a board of education"s actions concerning its employees (Id.).  Accordingly, petitioner lacks standing to challenge the adequacy of Gersen"s performance under the contract or his failure to complete the term of contract.  Only the board can properly pursue those claims.

Petitioner does have standing, however, to claim that payment under the 2001 contract constitutes a gift of public monies in violation of Article VIII, section 1 of the New York State Constitution (see, Ingram v. Boone, 91 AD2d 1063; Appeal of Gargan, 40 Ed Dept Rep 465, Decision No. 14,528).

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).  Respondents assert that the petition is untimely because the 2001 contract was executed on June 20, 2001, and the petition was not served until June 25, 2002, almost one year later.  Petitioner contends that the appeal is timely since it did not "ripen" until Gersen "breached" the contract and left the district.  However, petitioner is actually challenging the validity of the contract.  Thus, she was required to appeal within 30 days of its execution.

Petitioner contends that her delay should be excused because she allegedly did not learn of the changes in the 2001 contract until long after it was executed.  In an appeal to the Commissioner, petitioner bears the burden of establishing the facts upon which she seeks relief and demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 329, Decision No. 14,702; Appeal of L.S., 41 id. 270, Decision No. 14,683).  Although an appeal may in some circumstances be commenced within 30 days of discovery of an alleged wrongdoing or misuse of funds (see, e.g., Appeal of Johnson, 38 Ed Dept Rep 327, Decision No. 14,045), petitioner fails to provide any information about when she actually learned of the contract amendments.  Furthermore, petitioner does not establish that the contract amendments were not part of the public record or could not have been discovered when the contract was executed.  Moreover, Gersen submitted his resignation on March 11, 2002, more than ninety days before petitioner served the petition.  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Education Law "1711(3) specifically authorizes a board of education to appoint and contract with a superintendent of schools, fix his salary, and include "such other terms as shall be mutually acceptable to the parties, including but not limited to, fringe benefits. . .." (See, Perrenod v. Liberty C.S.D., 223 AD2d 870).

I will not substitute my judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily or capriciously, abused its discretion or failed to comply with applicable laws (Appeal of Devany, 41 Ed Dept Rep 466, Decision No. 14,747; Appeal of Rider, 39 id. 282, Decision No. 14,238).  On the record before me, petitioner has failed to prove that the board acted improperly or abused its discretion in approving Gersen"s contract.

In light of the foregoing disposition, I need not consider the parties" remaining contentions.