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Decision No. 15,048

Appeal of DIONE GOLDIN from action of the Board of Education of the Wappingers Central School District; Richard Powell, Superintendent; John Ditton, Faculty Advisor; and Saranne Ratner and Leslie Leventhal, Faculty Members and Officers of the Wappingers Congress of Teachers regarding a school district election. 

Decision No. 15,048

(May 6, 2004)

 Donoghue, Thomas, Auslander & Drohan, attorneys for respondents, Felice A. Bowen, Esq., of counsel 

MILLS, Commissioner.--Petitioner, challenges certain actions of the Board of Education of the Wappingers Central School District ("respondent board"), the superintendent, and three faculty members with respect to a school district election held on June 3, 2003.  The appeal must be dismissed.

Petitioner objects to an article and a letter to the editor regarding the budget vote, that appeared in the May 2003 edition of The Patriot, a monthly newspaper written and edited by students at the district"s John Jay High School.  She claims that the article was "full of misinformation about the budget" and that no opposing opinions appeared in the paper.  She argues that the district ignored a prior order of the Commissioner of Education to "refrain from using district resources to advocate a partisan position with respect to matters that are the subject of a school district vote" (Appeal of Goldin, 39 Ed Dept Rep 323, Decision No. 14,250).  She also alleges that the newspaper"s faculty advisor is either derelict for failing to review and correct the misinformation and partisan views in the article, or, is unqualified to serve as faculty advisor.  She asserts that the superintendent is also derelict because he was unaware of the paper"s contents until June 1, 2003, two days before the vote.

Petitioner further contends that members of the Wappingers Congress of Teachers ("WCT") improperly used district resources to advance WCT positions on the budget and certain candidates.  Specifically, she asserts that someone improperly used district equipment to make copies of "Meeting Notes" of a WCT meeting, and that respondent Ratner, WCT vice president, improperly used a district fax machine on April 30, 2003 to send those notes to building representatives.  Petitioner contends that the Meeting Notes advocated WCT"s partisan position on the budget and in favor of two candidates for election to respondent board.

Finally, petitioner objects to a paid advertisement on May 30, 2003 in the Poughkeepsie Journal and to a WCT Political Action Committee ("PAC") flyer, both sponsored by "Concerned Citizens for the Wappingers Central School District" ("Concerned Citizens").  The flyer was addressed to all New York State United Teachers ("NYSUT") members living within the district.  Petitioner contends that since district resources are used to collect WCT PAC funds, district resources were improperly used to advocate for WCT positions and candidates.

Petitioner requests that the Commissioner admonish respondents and union officers to refrain from using district resources for partisan activities, and take all appropriate steps required by law when a district disobeys a direct order of the Commissioner.

Respondents deny that that they violated any law or Commissioner"s decision or order.  They also deny that the faculty advisor or superintendent was derelict in the performance of their duties, that the publication of the article and letter in The Patriot was improper, or that district resources were improperly used for union activities, the flyer or advertisement.  They assert that petitioner has failed to allege that any acts complained of affected the outcome of the election, in which the budget passed by 706 votes.  They also assert that petitioner"s claims regarding the alleged dissemination of WCT Meeting Notes, the paid advertisement and The Patriot are untimely.

Initially, I must address several procedural issues.  Petitioner has attempted, improperly, to raise new claims in both her reply and memorandum of law.  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 Karpen, 40 Ed Dept Rep 199, Decision No. 14,460; Appeal of Crowley, et al., 39 id. 665, Decision No. 14,345; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Similarly, a memorandum of law may not be used to add new assertions that are not part of the pleadings (Appeal of Grinnell, 37 Ed Dept Rep 504, Decision No. 13,914; Appeal of Coombs, et al., 34 id. 253, Decision No. 13,301; Appeal of the Bd. of Educ., Tuxedo Union Free School Dist., 33 id. 626, Decision No. 13,171).  A memorandum of law does not constitute proof or evidence of any facts stated therein (Appeal of Goldin, 43 Ed Dept Rep ___, Decision No. 14,904; see also, Appeal of Laskas-Gillespie and Warshaw, 40 id. 568, Decision No. 14,559).  Accordingly, while I have reviewed petitioner"s reply and memorandum of law, I have not considered those portions that contain new allegations that are not responsive to new material or affirmative defenses in respondents" answer.

Petitioner also seeks permission to submit four additional documents with her reply memorandum of law.  Additional exhibits may only be submitted with the prior permission of the Commissioner (8 NYCRR "276.5), which petitioner neither requested nor obtained.  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Johnson, 38 Ed Dept Rep 524, Decision No. 14,086).  Thus, I have not accepted two documents regarding the campaign expenditures of the successful school board candidates because I find that they raise new issues and introduce new exhibits that are not relevant to the claims originally raised in this appeal (Appeal of Johnson, supra; Appeal of Sherman, 36 Ed Dept Rep 168, Decision No. 13,691).  I similarly reject as irrelevant the third document regarding petitioner"s request for those campaign reports under the Freedom of Information Law ("FOIL").  I also reject the submission of the Board Policy regarding student publications because petitioner failed to demonstrate why this document could not have been included in the petition.

A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Hoffman, 43 Ed Dept Rep ___, Decision No. 14,953; Appeal of Monahan, 42 id. 206, Decision No. 14,824; Appeal of Heller, 38 id. 335, Decision No. 14,048).  Joinder requires that an individual be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (8 NYCRR "275.8; Appeal of Hoffman, supra; Appeal of Heller, supra).  Although petitioner named three teachers as respondents in both the caption and body of the appeal, none of them was served individually.  Specifically the affidavits of service reveal that in lieu of serving respondents Ditton and Leventhal, petitioner served school secretaries in each of their schools.  Petitioner also served the principal"s secretary in lieu of serving respondent Ratner.  The Commissioner"s regulations only permit alternative service for an individual if he or she "cannot be found upon diligent search" (8 NYCRR "275.8).  Otherwise, the regulations clearly require that a copy of a petition "be personally served upon each named respondent" (Id.). Accordingly, since the three teachers were not personally served, the appeal must be dismissed as to them.

With respect to petitioner"s claims regarding the alleged dissemination of WCT Meeting Notes, the paid advertisement and The Patriot, the appeal must be dismissed as untimely.  An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or the performance of the act complained of, except for good cause shown, as set forth in the petition (8 NYCRR "275.16).  The alleged dissemination of WCT Meeting Notes occurred on April 30, the paid advertisement appeared on May 30, and The Patriot was published in May, more than 30 days prior to the commencement of this appeal on July 1, 2003.  Petitioner does not request that I annul the election or order a new vote.  Because the validity of this election itself is not at issue, these claims are untimely and must be dismissed (Appeal of Hubbard, 43 Ed Dept Rep ___, Decision No. 14,898; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Carroll, et al., 42 id. 326, Decision No. 14,871).

Petitioner contends in her reply, however, that she had no access to a copy of The Patriot and was unaware of the partisan statements therein until June 11, 2003, one week after a story about them was reported in a local newspaper.  She asserts, therefore, that her claims regarding those statements should be considered timely.  In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which she seeks relief (Appeal and Application of Davis, 43 Ed Dept Rep ___, Decision No. 15,007).  ThePatriot is a public document.  Petitioner"s mere conclusory statements fail to meet her burden of demonstrating good cause for not filing her appeal in a timely fashion (Appeal of Goldin, 38 Ed Dept Rep 322, Decision No. 14,044).

The record is devoid of any information about the date of the PAC flyer so I cannot definitively say whether petitioner"s claims concerning the flyer are untimely.  In any event, they must be dismissed on the merits.  Petitioner has not presented any evidence demonstrating that respondent board expended district resources in connection with the flyer or any partisan activities of the Concerned Citizens.