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Decision No. 15,569

Appeal of STEVEN ZULAWSKI, on behalf of his daughter, SARAH ELIZABETH, from actions of the Board of Education of the Northport-East Northport Union Free School District and Superintendent William J. Brosnan regarding charitable solicitation.

Decision No. 15,569

(April 12, 2007)

Ingerman, Smith, L.L.P, attorneys for respondents, Colleen F. Dowd, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Northport-East Northport Union Free School District (“board”) and Superintendent William J. Brosnan (“superintendent”) regarding a Thanksgiving project.  The appeal must be dismissed.

In November 2005, Sarah was a fourth grade student in the district’s Norwood Avenue Elementary School (“Norwood”) and her mother was a parent volunteer.  According to Norwood’s principal, parent volunteers proposed a Thanksgiving community service project to provide holiday meals for eight local needy families as had been done for the three preceding years.  The principal authorized the distribution of a flyer to the parents of all fourth and fifth grade students.  The flyer, entitled “`A Thanksgiving to Remember’ for our 4th and 5th Graders,” explained that on November 22, 2005, each class would create eight servings of one part of the Thanksgiving meal, for which the class parents would purchase the ingredients.  The flyer also stated, “If you can help in any way (food donations, food prep, in-class assistance, or cooking the food) please call your class parent.”  The bottom third of the form to be returned asked for contact information and whether the parent could volunteer in the classroom, or, if the parent could not be there, if the parent “would like to contribute cash ($2 -$5 would be most appreciated!).”

Petitioner and his wife objected to the Thanksgiving project.  Thereafter, on November 22, Sarah’s class made homemade butter, cranberry sauce and a Thanksgiving arts and crafts project as part of its planned holiday feast.  It also made extra cranberry sauce to contribute to the eight local families.  This appeal ensued.

Petitioner contends that the Thanksgiving project was a fundraising event that violated §19.6 of the Rules of the Board of Regents (“Rule 19.6”) which prohibits direct solicitation of charitable donations from children in public school during school hours.  He asserts that the flyer improperly mandated that class parents donate goods or money or assist with the event in the classroom and that respondents improperly selected the underprivileged families to be served.  Petitioner claims respondents failed to guarantee Sarah a learning environment free from the pressure to make charitable contributions to selected organizations.  Petitioner seeks an order prohibiting respondents from holding such fundraising events in the future.  He also seeks the removal of the superintendent.

Respondents contend that service of the petition was defective and that the petition fails to state a claim upon which relief may be granted.  They also assert that petitioner failed to exhaust his administrative remedies.  Respondents deny that the Thanksgiving project was a fundraising event and assert that it was a classroom and community service project that complied with the law and New York State’s educational curriculum standards for elementary social studies.  Respondents also deny any wrongdoing by the superintendent.

     I must first address several procedural issues.  Respondents contend that service of the petition was defective because Mrs. Zulawski served the petition upon the district and superintendent.  However, only Mr. Zulawski is a named petitioner in this appeal.  Accordingly, I will not dismiss the appeal for improper service (see 8 NYCRR §§275.1 and 275.8).

     Petitioner asserts that the answer is procedurally defective because it was not properly verified.  The answer and three accompanying affidavits are dated December 23, 2005, whereas the superintendent’s verification of the answer is dated December 22, 2005.  Respondents submitted an affidavit from the attorney who notarized the superintendent’s signature on the verification, explaining that the verification was signed on December 23 but was misdated December 22.  I find this clerical mistake to be harmless error.  Accordingly, I have accepted respondents’ answer.

     Petitioner also objects to the timing and service of respondents’ memorandum of law.  The record demonstrates that my Office of Counsel granted respondents an extension of time within which to serve its memorandum, and respondents complied with that extension.  In addition, although the memorandum was served by Federal Express rather than mail, petitioner received the memorandum and was not prejudiced thereby (seeAppeal of McDougall and Murphy, 37 Ed Dept Rep 611, Decision No. 13,941).  Accordingly, I have considered respondents’ memorandum of law.

     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 E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  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.

     Respondents assert that petitioner failed to exhaust his administrative remedies because he failed to submit a written complaint to the board pursuant to its Policy #1312.  That policy, “Complaints Concerning School Personnel/Instructive Materials,” provides in pertinent part, “In all cases of dispute arising under the rules, regulations and orders of the Board, or the Superintendent of Schools, appeals may be taken successively to the immediate superior of the person rendering the decision . . . (emphasis added).”  The use of the word “may” in the Policy implies that petitioner had discretion about whether to proceed to the board.  In light of this permissive language, I cannot conclude that petitioner failed to exhaust his administrative remedies (seeAppeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 329, Decision No. 14,702).

     Turning to the merits, Rule 19.6 provides:

Solicitation of charitable donations. Direct solicitation of charitable donations from children in the public schools on school property during regular school hours shall not be permitted.  The Commissioner shall develop and disseminate guidelines on the interpretation of this rule.

In January 1994, Counsel to the Board of Regents issued a guidance memorandum and set of Questions and Answers concerning Rule 19.6.  The memorandum states that the purpose of Rule 19.6 “is to protect public school children from exposure to coercive charitable fund-raising activities while they attend school.”  The memorandum further states “[I]t is not the intent of Rule 19.6 to prohibit indirect forms of charitable solicitation on school premises that do not involve coercion, such as placing a bin or collection box in a hallway or other common area for the donation of food, clothing, or money.  In these instances, the collection activity is passive, and no pressure is exerted upon students to participate.”

Respondents deny that the Thanksgiving project was a fundraiser and assert it was an educational community service project.  According to the teacher’s affidavit, she and two of the three class parents purchased and paid for the ingredients for the cranberry sauce and petitioner’s wife, as the third class parent, provided cream for the butter, bread and goody bags.  No student in Sarah’s class brought in any items or money for the project.  The principal avers that she authorized the placement of two collection boxes in the Main Office for the anonymous collection of free turkey coupons from a local grocery store and monetary donations.

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Petitioner has failed to establish that respondents violated Rule 19.6.  In this case, the classroom activities principally related to a lesson about the customs and traditions of the national holiday and were done for the benefit of the students.  Most of the prepared food, including the cranberry sauce, was consumed or taken home by the students.  While the remaining cranberry sauce was packaged for the community project, all of the ingredients were provided by the teacher and two class parents.  Any monetary donations for the community were passively collected through boxes in the Main Office in compliance with the Rule.

Since I find no violation of Rule 19.6, there is no basis for removal under Education Law §306 or the case law thereunder.