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Decision No. 15,674

Appeal of K.M., on behalf of her son P.M., from action of the South Colonie Central School District regarding bullying complaints.


Decision No. 15,674

(October 10, 2007)


Tabner, Ryan and Keniry, LLP, attorneys for respondent, William F. Ryan, Jr., Esq., of counsel


MILLS, Commisssioner.--Petitioner appeals actions of the Board of Education of the South Colonie Central School District (“respondent”) regarding her complaints against respondent’s varsity baseball coach.  The appeal must be dismissed.

During the 2003-2004 and 2004-2005 school years, petitioner’s son, P.M., attended respondent’s high school and was a member of its varsity baseball team (“team”).  G.L. was the coach of the team both years.

Petitioner claims that while P.M. was a member of the team, he was subjected to acts of public ridicule, humiliation and bullying by G.L.  In 2004 and 2005, petitioner complained to the district’s high school athletic director regarding G.L.’s conduct towards her son.

By letter dated May 31, 2005, petitioner also complained to respondent’s superintendent.  The record indicates that after receiving this letter, the superintendent and the athletic director began to investigate petitioner’s allegations.

On June 16, 2005, the athletic director met with G.L. to discuss petitioner’s allegations.  Subsequently, the athletic director reported his findings to the superintendent.  Thereafter, P.M. graduated from respondent’s high school.

In late June 2005, the superintendent received a call from petitioner asking for information regarding the district’s investigation of her allegations.  On July 6, 2005, the superintendent met with petitioner and P.M. to discuss petitioner’s allegations.  At the end of the meeting, the superintendent agreed to continue investigating the matter.

As part of his investigation, the superintendent planned to meet with G.L.  However, G.L. had an accident in the summer of 2005 which caused him severe injuries, and the meeting was delayed.  The superintendent advised petitioner of this situation during a telephone conversation on or about September 15, 2005.  Petitioner responded with a letter criticizing the superintendent’s lack of progress.

On September 27, 2005, the superintendent met with the athletic director and G.L.  During this meeting, the superintendent informed G.L. that he would be issuing a counseling memorandum.  Later that day, the superintendent met with respondent in executive session to discuss his findings and plan of action with respect to G.L.

On September 30, 2005, the superintendent sent a counseling memorandum to G.L..  On October 5, 2005, G.L. signed the counseling memorandum, indicating that he reviewed the superintendent’s recommendations, and the memorandum was placed in G.L.’s personnel file.  This concluded the district’s investigation of petitioner’s complaint.

On or about November 1, 2005, petitioner filed a complaint with the New York State Education Department’s Teacher Discipline Unit regarding G.L.  Thereafter, petitioner commenced this appeal.

Petitioner claims that respondent did not properly respond to her bullying allegations against G.L. and, therefore, violated its code of conduct, its anti-bullying policy, the Safe Schools Against Violence in Education Act (“SAVE”) (Chapter 180 of the Laws of 2000) and the Education Law.  Petitioner contends that respondent, the superintendent and G.L. violated her son’s civil rights.  Petitioner maintains that acts and/or omissions of the superintendent and respondent’s president, James “Tim” Ryan (“Ryan”), constituted a willful violation and/or neglect of duty.

Petitioner seeks G.L.’s suspension until respondent conducts a thorough investigation of her allegations.  Petitioner further requests that I instruct respondent to thoroughly investigate her allegations and issue a report.  Petitioner also requests that I instruct respondent to establish a committee to review the district’s code of conduct and its response to the code of conduct violations in accordance with the provisions of Education Law §2801, as well as any other applicable sections of the Education Law.  Petitioner also seeks a determination that the superintendent and Ryan are guilty of willful violation and/or neglect of duty.

Respondent alleges that it properly responded to petitioner’s allegations.  Respondent further contends that petitioner’s appeal is untimely and that petitioner lacks standing to challenge respondent’s actions.  Respondent asserts that petitioner failed to name a necessary party and that the Commissioner lacks jurisdiction over petitioner’s claims.

I must first address several procedural matters.  Petitioner submitted several documents in reply to respondent’s submissions.  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 petitioner’s reply submissions, 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). Respondent’s determination was made on September 27, 2005, and petitioner’s appeal was commenced on November 2, 2005 more than 30 days later.  Petitioner acknowledges her lateness and claims that until she received respondent’s answer and supporting papers, she was unaware that the superintendent had both conducted and concluded an investigation of her allegations.  Nevertheless, the claims that challenge such actions are untimely and must be dismissed.

Petitioner seeks permission to supplement and/or amend her appeal to challenge respondent’s September 27, 2005 actions.  The regulations of the Commissioner allow parties to submit additional pleadings, but only with the prior permission of the Commissioner (8 NYCRR §275.3[b]).  The regulations also require that the proposed pleading accompany such an application (8 NYCRR §275.3[b]).  Since petitioner failed to submit her proposed pleading in accordance with §275.3(b), her request to amend is denied.

To the extent petitioner requests that respondent be ordered to investigate her complaints, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  The district conducted an investigation which culminated in a meeting between respondent and it’s superintendent on September 27, 2005 and a counseling memorandum to G.L.  Thus, these claims are moot.

In addition, to the extent petitioner asserts claims against President Ryan, the superintendent and G.L., the appeal must be dismissed for failure to join them as necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption 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 (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  The superintendent’s, Ryan’s and G.L.’s rights would be adversely affected by any determination that they acted improperly.  Thus, petitioner’s failure to join Ryan, the superintendent and G.L. requires the dismissal of any claims against them.

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