Appeal of ANONYMOUS from action of the Board of Education of the City School District of the City of Plattsburgh and Superintendent Michelle Kavanaugh regarding denial of access to school functions.

Decision No. 15,167

(January 31, 2005)

Lori A. Cantwell, Esq., attorney for petitioner

Harris, Beach, LLP, attorneys for respondents, Dennis Curtin and Jacqueline M. Kelleher, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges certain directives of the Board of Education of the City School District of the City of Plattsburgh ("board") and its superintendent, Michelle Kavanaugh ("superintendent"), which have limited her access to certain school functions. The appeal must be dismissed.

At the time the appeal was commenced, petitioner was a tenured physical education teacher in the school district, and formerly coached the district�s various track programs. On August 28, 2003, petitioner was placed on paid administrative leave pending the filing of charges pursuant to Education Law �3020-a. Such charges were voted by the board on November 6, 2003, and additional charges were voted on January 8, 2004. At the time the appeal was commenced, petitioner was also the parent of a child attending school in the district.

On August 29, 2003, the superintendent informed petitioner by letter that she was to have no contact with district staff or students, and would be allowed on school property only "with respect to your role as a parent in addressing your child�s educational issues." Petitioner was required to seek permission to enter school grounds in advance. By letter dated November 14, 2003, the superintendent further defined the restrictions placed on petitioner. The November 14 letter indicated that petitioner could not attend any "home" athletic events that took place off district property, nor could she attend any district function that took place off district property. On May 20, 2004, the superintendent sent petitioner another letter which directed her not to attend any home or away track meets, including qualifiers, sectionals, or state events, where district students were participating. On June 8, 2004, respondent�s attorney sent a letter to petitioner denying her permission to attend an academic awards ceremony on June 9, 2004, in which petitioner�s daughter was to receive an academic award. (It appears that the June 8 letter was the only instance when petitioner was denied permission, as a parent, to attend an event held on school property in which her daughter was a participant.)

Petitioner argues that respondents have no legal authority to restrict her access to track meets off school property, as stated in the May 20, 2004, letter, and argues that, with respect to events on school property (the June 8, 2004, letter), respondents must adhere to a consistent policy regarding her attendance as a parent, and avoid making decisions which are arbitrary and capricious.

Respondents argue that they have the authority to restrict the activities of petitioner, a paid district employee on suspension, with respect to events both on and off school property. They also argue that they have allowed petitioner to attend all but one event she has asked to attend as a parent, and that they have not been arbitrary or capricious. Respondents also assert a number of affirmative defenses, including mootness and untimeliness.

After commencement of the appeal, my Office of Counsel received a letter from respondents� attorney and an affidavit of the superintendent indicating that petitioner�s daughter was no longer a student in the district, but had transferred to the Chazy Central School District prior to the commencement of the 2004-2005 school year. Petitioner has not contradicted that information.

Petitioner did not bring an appeal with respect to the restrictions on her activities imposed by the letters dated August 29, 2003, and November 14, 2003. Those letters directed her to have no contact with staff or students (with no territorial limits expressed), banned her from school grounds (except as a parent regarding her child�s educational issues), and banned her from home athletic contests and all functions sponsored by the school district to be held off school property. To the extent that the petition purports to challenge respondents� actions of November 14, 2003 and earlier, it is dismissed as untimely (8 NYCRR �275.16). This appeal was not commenced until June 2004, some seven months after the November 14, 2003, letter, and petitioner offers no excuse in the petition for her delay with respect to that letter (8 NYCRR �275.16; Appeal of Parker, 34 Ed Dept Rep 379, Decision No. 13,351).

Petitioner�s challenge to the June 8, 2004 denial of her request to attend a ceremony on June 9 in which petitioner�s daughter was to receive an academic award is moot, both because the award ceremony has already taken place, and because petitioner�s daughter is no longer a student in the district. It is well settled that the Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of J.F., 42 Ed Dept Rep 136, Decision No. 14,800, [where the student had left the school district]; Appeal of Denise W., 40 id. 503, Decision 14,538, [where the teacher had left the district]; Appeal of a Student with a Disability, 39 id. 223, Decision No. 14,221, [where the student had left the district]).

Petitioner also challenges the restrictions contained in the letter dated May 20, 2004. That letter directs that, in addition to the restrictions in the previous letter, petitioner was not to attend "any home or away outdoor track meets, including qualifiers, sectional and state events, where Plattsburgh City School District students are participating." This letter expands the restriction on petitioner from only home athletic activities off district property to all outdoor track meets, whether home or away.

Neither side has submitted relevant citations with respect to this portion of the appeal. The ability of an employer to restrict activities of a paid employee outside working hours is not unlimited (cf., Labor Law �201-d). However, as respondents point out, many of the �3020-a charges pending against petitioner involve an allegedly improper relationship between petitioner and a student who was a member of the track team. Other charges against petitioner involve allegedly improper conduct by petitioner in her capacity as track coach in conspiring with other coaches to "fix" the outcome of various track events. Respondents also point out that some members of the track team may be called as witnesses in the �3020-a proceeding.

Accordingly, I find that petitioner has not met her burden of demonstrating a clear legal right to the relief requested and of establishing the facts upon which relief is sought (8 NYCRR �275.10; Appeal of Washington, 42 Ed Dept Rep 197, Decision No. 14,820; Appeal of Siwula, 41 id. 375, Decision No. 14,718; Appeal of L.S., 41 id. 270, Decision No. 14,683). I find respondents� directive of May 20, 2004, to be reasonably and narrowly limited in scope, since it extends only to track meets, with the single purpose of restricting petitioner from contacting student athletes with whom she had previously been closely associated. I do not find such a restriction under these circumstances to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

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