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Decision No. 15,660

Appeal of ENRIQUE CATALAN from action of the Board of Education of the Pocantico Hills Central School District and Dr. Thomas Elliott, Superintendent, regarding actions of the superintendent.

Decision No. 15,660

(September 19, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Pocantico Hills Central School District (“board”) not to investigate the actions of Superintendent Dr. Thomas Elliott (“Dr. Elliott”) (collectively “respondents”).  The appeal must be dismissed.

Petitioner is a resident of respondents’ district and is employed as the Assistant Superintendent for Finance and Operations of the Amityville Union Free School District (“Amityville”).  Petitioner attended several public meetings regarding respondents’ proposed 2006-2007 budget.  At these meetings, petitioner questioned certain expenses and expressed his objections to the proposed budget.

In the spring of 2006, Dr. Elliott telephoned petitioner’s supervisor.  The parties dispute the substance of the ensuing conversation.  Petitioner claims that Dr. Elliott requested that petitioner’s supervisor “exert pressure upon [petitioner] to withdraw [his] opposition to the Proposed School Budget and ... made several defamatory remarks about [petitioner].”  Respondents submitted an affidavit from Dr. Elliott denying petitioner’s account of the conversation and stating that “I described some of the public comments that were made by petitioner at Board meetings and commented that I thought a central administrator would be supportive of his/her district of residence.”

By letter dated December 8, 2006, petitioner requested that the board investigate Dr. Elliott’s conduct.  The board acknowledged receipt of petitioner’s letter by letter dated December 21, 2006.

On January 28, 2007, petitioner requested information on the status of the investigation.  By letter dated February 26, 2007, the board president informed petitioner that the matter involved personnel issues and could not be discussed in public.  The letter also stated that petitioner’s concerns had been “fully vetted” by the board and its attorney and that the letter represented the board’s “final comment.”

On February 24, 2007, petitioner wrote to the State Education Department (the “Department”) and asked it to investigate Dr. Elliott’s conduct.  The Department notified petitioner on March 5, 2007 that an appeal to the Commissioner was the appropriate method to address such matters.  This appeal ensued.

Petitioner requests, interalia, that the Commissioner undertake an “independent investigation” of the facts surrounding Dr. Elliott’s conduct, order the “immediate removal” of Dr. Elliott under Education Law §306 and order the “immediate removal” of any board member(s) found to have played a role in Dr. Elliott’s conduct.  Petitioner also seeks $5,000 in damages.

Respondents argue, among other things, that the appeal must be dismissed as untimely.  Respondents assert that, with respect to petitioner’s claims against Dr. Elliott, petitioner has failed to personally serve Dr. Elliott and meet the notice requirements of §277.1 of the Commissioner’s regulations.  Respondents also maintain that petitioner has failed to join and serve individual board members as necessary parties.

I must first address petitioner’s reply.  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.

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).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Bean, 42 id. 171, Decision No. 14,810).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).

Petitioner argues that the 30-day time period should run from March 20, 2007 – the date on which he received a written response from the Department.  However, the record indicates that, by letter dated February 26, 2007, the board informed petitioner that the response was the board’s “final comment” on the matter.  This letter constitutes the final decision of the board from which petitioner now appeals.  Therefore, the 30-day period began to run when petitioner received this letter.

Petitioner maintains that, even if the 30-day period is measured from the board’s February 26, 2007 letter, his lack of knowledge of the appeal process and the fact that he is acting without an attorney excuse his delay in commencing this appeal.  However, as stated above, neither explanation constitutes a sufficient basis to excuse petitioner’s delay.  The appeal, therefore, must be dismissed as untimely.

Respondents contend that petitioner has failed to serve and join as parties those individual board members he seeks to remove from office.  In his reply, petitioner asserts that he did not bring a removal action under Education Law §306 and §277 of the Commissioner’s regulations, but brought an appeal under Education Law §310 and §275 of the Commissioner’s regulations seeking an investigation and “if such investigation determines that individual board members had prior knowledge of, or were involved in the attempt of [Dr. Elliott] to influence the 2006-07 school budget vote, then their removal is requested.”  Since petitioner did not comply with the applicable regulations regarding the removal of board members and denies that he seeks their removal, I will not address this affirmative defense.

Respondents also argue that, to the extent petitioner seeks removal of Dr. Elliott, the notice of petition is defective.  The Commissioner’s regulations require that the notice accompanying a removal application specifically advise the school officer that the application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective, and does not secure jurisdiction over the intended respondent (Application of Hamilton, 45 Ed Dept Rep 367, Decision No. 15,352; Appeal of Parisi, 42 id. 400, Decision No. 14,893; Application of Knapp, 41 id. 41, Decision No. 14,608).  Therefore, petitioner’s claims with respect to the removal of Dr. Elliott must be dismissed.

Next, respondents contend that the appeal should be dismissed against Dr. Elliott because he was not personally served, as is required by §275.8(a) of the Commissioner’s regulations.  In his reply, petitioner submits an affidavit from the process server who executed the affidavit of service.  The affidavit states that the process server personally handed a copy of the petition to Gina Downes, the superintendent’s secretary and district clerk, who indicated that she was “authorized to receive notice of service on behalf of [Dr.] Elliott.”  Ms. Downes submitted an affidavit stating that she was unaware that the process server was attempting to serve process on Dr. Elliott, that the process server did not ask whether she was authorized to accept service on behalf of Dr. Elliott and that she did not tell the process server that she was so authorized.  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).  In light of the conflicting affidavits, I cannot conclude there was valid service on Dr. Elliott.  Accordingly, I will dismiss the appeal as against him.

The appeal must be dismissed with respect to petitioner’s demand that the Commissioner investigate the conduct of Dr. Elliott and the board.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).

Finally, petitioner seeks $5,000 in damages.  However, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

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