Appeal of ROBERT MEYER and BRUCE PAVALOW from actions of the Katonah-Lewisboro Union Free School District and Dr. Robert Lichtenfeld, Superintendent, regarding denial of access to personnel records.

 

Decision No. 15,436

 

(August 1, 2006)

 

Shaw & Perelson, LLP, attorneys for respondents, David S. Shaw, Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal the denial of requests for access to the personnel records of certain current and former district employees by the Board of Education of the Katonah-Lewisboro Union Free School District (“board”) and Superintendent Lichtenfeld (“superintendent”).  The appeal must be dismissed.

Petitioners are members of respondent board.  On an unspecified date during the 2003-2004 school year, petitioner Meyer (“Meyer”) claims that respondents improperly precluded him from reviewing personnel records at an executive session of the board.

On an unspecified date in early 2004, Meyer requested that the superintendent bring the personnel records of two district employees to a board meeting.  The superintendent only brought one employee’s file to the meeting and claimed that he had misunderstood Meyer's request.  According to the petition, the superintendent improperly refused a second request for the file.

On or about September 25, 2004, Meyer sent a letter to the superintendent requesting that two employees' personnel records be brought to the board's October 12, 2004 meeting.  The letter stated that Meyer's purpose for requesting these records was "to enable the Board to carry out its legal responsibilities under Education Law."

By e-mail dated October 12, 2004, petitioner Pavalow (“Pavalow”) requested that the superintendent bring another employee's personnel record to that night's board meeting.  At the meeting, the board voted to adjourn into executive session to review the personnel records of the employees.  Prior to voting, the board discussed the purpose of the proposed review of the files.  During the executive session, one or more of the board members expressed concerns about the propriety of reviewing the personnel records and requested the advice of the district's counsel.  In light of these concerns, the board postponed any review of the records.

Thereafter, the board scheduled a special meeting for November 8, 2004 to review the personnel records requested by Meyer.  By letter dated October 20, 2004, Pavalow also requested that the superintendent bring one current and two former employees' personnel records to the November 8, 2004 meeting.  In this letter, Pavalow used the same justification for his request as Meyer.

At the November 8, 2004 board meeting, a motion was made to adjourn into executive session to review the personnel records.  Following the motion, a discussion ensued in public session.  During this discussion, one board member referenced legal advice the board had received regarding the procedures for obtaining access to employee personnel records.  Another board member asked petitioners to provide more specific reasons for their requests.  The board also permitted members of the public to comment on whether it should review the requested records.  At the conclusion of this discussion, the board voted not to adjourn into executive session to review the personnel records.  This appeal ensued.  Petitioners' request for interim relief was denied.

Petitioners contend that respondents violated Part 84 of the Commissioner's regulations by denying their requests to review employee personnel records.  Specifically, petitioners assert that the reasons for their requests satisfied the requirements of �84.3 of the regulations.  Petitioners further assert that board members have an unconditional right to review employee personnel records.  In addition, petitioners maintain that out of concern for the privacy rights of the employees, their reasons for seeking such review should only be disclosed in executive session.  Finally, petitioners contend that the superintendent's refusal to produce the requested records and the board's denial of their requests have impeded petitioners' ability to carry out their legal responsibilities as board members.

Respondents assert that the appeal is untimely with respect to petitioners' claims that challenge actions taken by respondents prior to the November 8, 2004 board meeting.  Respondents further contend that the appeal is moot with respect to petitioners' claims regarding any events that occurred prior to the board’s 2004-2005 term.  Respondents maintain that the reason petitioners articulated for requesting review of the employee personnel records did not satisfy the regulatory requirement.  Respondents also maintain that petitioners have failed to sustain their burden of proof.

I must first address several procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  This appeal was commenced on December 7, 2004.  Petitioners offer no good cause for their delay in challenging actions that occurred more than 30 days prior to that date.  Therefore, the claims that challenge such actions are dismissed as untimely.

Part 84 of the Commissioner's regulations contains the procedures boards must follow to obtain access to employee personnel records (8 NYCRR �84.1).  Section 84.2 of the Commissioner's regulations provides:

Examination of school employee personnel records by the board of education shall be conducted only at executive sessions of the board.  Any board member may request the chief school officer to bring the personnel records of a designated employee or employees to an open meeting of the board.  The board shall then determine whether to conduct an executive session for the purpose of examining such records.  The chief school officer shall present such records to the board at the executive session.  Such records shall, in their entirety, be returned to the custody of the chief school officer at the conclusion of the executive session of the board.

Section 84.3 of the Commissioner's regulations provides:

Information obtained from employee personnel records by members of the board of education shall be used only for the purpose of aiding the members of the board to fulfill their legal responsibilities in making decisions in such employee personnel matters as appointments, assignments, promotions, demotions, remuneration, discipline or dismissal, or to aid in the development and implementation of personnel policies, or such other uses as are necessary to enable the board to carry out legal responsibilities.

Petitioners cite Bd. of Educ., Great Neck Union Free School Dist. v. Areman (41 NY2d 527), and Gustin v. Joiner (95 Misc 2d 277, affd 68 AD2d 880), in support of their claim that board members have an unconditional right to review employee personnel records.  However, Areman does not state that board members have such a right.  Instead, Areman states that although a board has a right and a duty to review teacher personnel files, such review must be related to legitimate board purposes and functions (41 NY2d at 533).  Additionally, in Areman, the Court of Appeals did not squarely address the issue of an individual board member's right to examine district records.  Rather, it held that public policy prohibits a board from bargaining away its right to examine teacher personnel records (41 NY2d at 534). It further suggested that the Board of Regents might want to consider adopting regulations governing access to records (41 NY2d at 534).

Following Areman, the Board of Regents adopted Part 84.  Notably, Part 84 does not give an individual board member unfettered access to personnel records.  Rather, �84.3 sets forth certain limited purposes for which such information may be used by board members.  Further, upon a member’s individual request, “[t]he board shall ... determine whether to conduct an executive session for the purpose of examining such records” (8 NYCRR �84.2).  Implicit in this requirement is discretion on the part of the board to determine whether the rationale for the request satisfies one of the purposes listed in �84.3.  To the extent the holding in Gustin v. Joiner (95 Misc 2d 277, affd 68 AD2d 880) suggests that the board lacks discretion, it is expressing rejection (see 28 NY Jur2d, Courts and Judges �220).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  The record is devoid of any evidence that petitioners articulated specific reasons to the superintendent or the board, at any time prior to the board's vote denying their requests to review the records.  Both Meyer and Pavalow simply stated that their purpose for review was "to enable the Board to carry out its legal responsibilities under the Education Law."  Since petitioners failed to specifically state how reviewing the requested records would enable to the board to carry out its legal responsibilities, the board's refusal to adjourn into executive session was not arbitrary or capricious.  Accordingly, I find no violation of Part 84 by respondents.

In light of this disposition, I need not address the parties' remaining contentions.

 

THE APPEAL IS DISMISSED.

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