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Decision No. 15,690

Appeal of L.M. from action of the Board of Education of the Longwood Central School District regarding a personnel matter.

Decision No. 15,690

(November 27, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Christopher M. Powers, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Longwood Central School District (“respondent”) regarding a personnel warning memorandum.  The appeal must be dismissed.

Petitioner is a principal in one of respondent’s schools.  On November 9, 2006, the superintendent convened a meeting (“meeting”) at which various matters concerning the school building were discussed.  During the meeting, petitioner expressed dissatisfaction with a decision previously made by an assistant superintendent.  On December 1, 2006, the assistant superintendent issued a warning memorandum (“warning”) to petitioner which indicated that his conduct during the meeting was inappropriate.

By memorandum to the superintendent dated December 8, 2006, petitioner claimed that his conduct at the meeting was professional and that he had the right to present issues of concern.  Petitioner also argued that the assistant superintendent issued the warning to harass and intimidate him for filing an EEOC complaint.  Petitioner stated that he intended to file a grievance with his union and petition respondent for review of the warning.  Petitioner also requested that the warning be expunged from his record.

On January 4, 2007, petitioner, his union representative and the superintendent met to discuss the warning memorandum.  By memorandum dated January 31, 2007, the superintendent informed petitioner that his comments during the meeting were inappropriate and that the warning was a confidential communication to petitioner and not part of his personnel file.

By letter dated February 5, 2007, petitioner appealed the superintendent’s decision to respondent and requested that the warning be expunged from his personnel file.  By letter dated March 13, 2007, petitioner requested that respondent address his appeal so he could demonstrate that he had exhausted his administrative remedies.

By letter dated March 21, 2007, respondent advised petitioner that his concerns were an administrative matter.  This appeal ensued.

Petitioner contends that respondent’s actions were arbitrary and capricious and that he has the right to bring legitimate building concerns to the superintendent’s attention.  Petitioner maintains that his conduct during the meeting was not inappropriate or unprofessional and that he did not verbally attack or criticize the assistant principal.  Petitioner requests that the warning be deemed a private communication and expunged from his personnel file.

Petitioner also requests a declaratory ruling that the warning was not a private communication, that he did not act inappropriately or unprofessionally, that the building meeting was not a public meeting and that respondent should have acknowledged his appeal and conducted an independent review prior to determining that the issue was an administrative matter.

Respondent alleges that the appeal is untimely and fails to state a claim upon which relief may be granted.  Respondent also maintains that the warning was a private communication which was not placed in petitioner’s personnel file.  Finally, respondent alleges that petitioner failed to exhaust his administrative remedies.

Initially, I must 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).

Respondent alleges that the appeal is untimely because the assistant superintendent issued the warning on December 1, 2006 and the appeal was not commenced until April 11, 2007.  The record reflects that petitioner attempted to appeal the warning to respondent by letter dated February 5, 2007 and that respondent answered petitioner’s correspondence by letter dated March 21, 2007.  Therefore, I decline to dismiss the appeal as untimely.

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).  To the extent petitioner requests that the warning be expunged from his personnel file, the appeal must be dismissed as moot.  Both the superintendent’s January 31, 2007 memorandum and his affidavit of April 26, 2007 indicate that the warning was a confidential communication from a supervising assistant superintendent to petitioner, and not part of petitioner’s personnel file.  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 produce anything to rebut this evidence.

The appeal must also be dismissed to the extent it requests declaratory relief.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791; Appeal of Hillhouse, 41 id. 385, Decision No. 14,720).

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