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Decision No. 15,883

Application of RICHARD AYERS for the removal of Candice Snyder, Michael Kehl, Joseph Meyer and Robert Shadbolt, Norbert Fuest and Regina Lepsch, as members of the Board of Education of the Attica Central School District, and Bryce Thompson, as Superintendent.

Decision No. 15,883

(March 2, 2009)

Drew & Drew, LLP, attorneys for petitioner, Carolyn M. Nugent, Esq., of counsel

Harris Beach, LLP, attorneys for respondents, Laura M. Purcell, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident and former board member[1] of the Attica Central School District, seeks the removal from office of the superintendent and six board members (collectively referred to as “respondents”) for allegedly failing to comply with the requirements of §100.11 of the Commissioner’s regulations regarding recertification of the district’s shared decision-making plan.  The application must be denied.

Section 100.11(b) of the Commissioner’s regulations requires each school district to develop and adopt a district plan for the participation by teachers and parents with administrators and school board members in school-based planning and shared decision-making.  Section 100.2(f) of the Commissioner’s regulations requires that the district’s plan be reviewed biennially by the board of education.  On February 14, 2008, the Board of Education of the Attica Central School District (“board”) recertified the district’s “School-Based Planning and Shared Decision Making Plan” (“plan”) in a 6-1 vote, with petitioner dissenting.

On February 28, 2008, petitioner asked the board to rescind its recertification because the board allegedly did not follow the procedures and requirements of §100.11 of the Commissioner’s regulations when recertifying the plan.  The board rejected petitioner’s request.  

In light of petitioner’s concerns, the superintendent arranged a meeting with Michael Glover, District Superintendent of the Genesee Valley Board of Cooperative Educational Services.  Mr. Glover reviewed the plan and by letter dated March 11, 2008, recommended that the superintendent reconvene the district-wide team and revise and update the plan to reflect the district testing protocol, state assessments and personnel titles.  On April 24, 2008, the board approved a new district-level compact team[2].  This appeal ensued.  Subsequently, the district compact team met to review proposed changes to the plan.  On June 12, 2008, the board adopted a revised plan, with petitioner dissenting. 

Petitioner alleges that respondents failed to follow the requirements of §100.11(f) when they recertified the district’s plan on February 14, 2008.  Specifically, petitioner alleges that the board recertified the plan without reviewing the entire plan and all relevant documents and without collaborating with the district committees.  Petitioner also alleges that the individuals who recommended the recertification were chosen by the superintendent and were not selected by the appropriate constituent groups, as is required under §100.11 of the Commissioner’s regulations. 

Petitioner requests that the individual respondents be removed from office.  Petitioner also requests that the district form and train building teams and provide them with pertinent academic and financial information relative to their specific buildings.  Petitioner further asks that respondents be required to re-convene a properly formed and trained district-wide planning committee to conduct a proper biennial review and that respondents review and reevaluate the plan and adopt it at a public meeting after consultation and full participation with all stakeholder groups.

Respondents argue that petitioner has failed to demonstrate that respondents committed a wilful violation of law or neglected their duties.  Respondents also allege that the application is untimely, that service was improper and that the claims raised in the petition have been rendered moot by subsequent board action.

First, I will 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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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.

The application must be dismissed as against respondent Fuest.  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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Fuest is no longer a member of the board.  Petitioner’s application for Fuest’s removal, is therefore, moot. 

The application must also be dismissed as against the individual board members for lack of proper service.  Commissioner’s regulation §275.8, which is made applicable to removal proceedings by Commissioner’s regulation §277.1, provides in pertinent part:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the commissioner.

The affidavits of service submitted herein state that service was made on the individual board members by delivery of the notice of petition on the district clerk.  The affidavit of service does not allege that any “diligent search” was made, and the affidavit does not indicate that any attempt was made to serve the individual board members prior to serving the district clerk.  Even if a diligent search had been made, the regulation requires that substitute service against an individual respondent be made at the individual’s residence between 6:00 a.m. and 9:00 p.m., which was not done.  Moreover, no request for any alternate service was made to the Commissioner.  As a result, this matter must be dismissed as to the individual board members (Application of Barton, 48 Ed Dept Rep  _, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of the New York City Department of Education, 46 id. 199, Decision No. 15,482).

Moreover, the application is untimely as to all respondents.  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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  Petitioner’s claim arises out of the board’s recertification of its plan on February 14, 2008, and this appeal was not commenced until May 8, 2008, more than two months later. Petitioner does not argue that he was unable in good faith to discover the facts underlying his claim until the 30-day period had expired.  Moreover, petitioner admits in his reply that from February 2008 to April 2008, he attempted to inform the superintendent and the board members of their failure to follow the shared decision making requirements when they recertified the plan.  Consequently, I find that petitioner was aware of the underlying facts in this appeal in February rendering the application untimely.

Further, I find no merit to petitioner’s assertion that this constitutes a continuing wrong that may be appealed at any time.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an uncertified teacher (Appeal of Brown, 39 Ed Dept Rep 343, Decision No. 14,255), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Appeal of a Student with a Disability, 46 Ed Dept Rep 407, Decision No. 15,548; Appeal of Smalls, et al., 46 id. 246, Decision No. 15,496).  There is no indication that the resulting plan, in and of itself, is unlawful.  Therefore, I reject petitioner’s claim that respondents’ alleged failure to utilize the shared decision-making process in the recertification of their plan, constitutes a continuing wrong (Appeal of Caldwell et. al., 36 Ed Dept Rep 296, Decision No. 13,729; Appeal of Akshar, 35 id. 424, Decision No. 13,590). 

As for petitioner’s remaining requests for relief, these claims must also be dismissed.  Petitioner requests that the board be required to properly form and train building teams and reconvene a properly formed and trained district-wide planning committee to conduct a biennial review.  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Here, petitioner failed to name the board as a party.  Accordingly, these claims must also be dismissed for petitioner's failure to join the board as a party to this proceeding.

In light of the foregoing disposition, I need not address the petitioner’s remaining contentions. 



[1] Petitioner’s term as a board member expired on June 30, 2008.

[2] The district’s shared decision-making teams are referred to by the district as “compact teams”.