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Decision No. 15,926

Appeal of SCOTT A. STEPIEN from action of the Board of Education of the Lewiston-Porter Central School District, William H. Arrington, III, and Theresa A. Demers, regarding employment of teachers.

Decision No. 15,926

(June 2, 2009)

Norton/Radin/Hoover/Freedman and Webster Szanyi, LLP, attorneys for respondents, Andrew J. Freedman and Ryan G. Smith Esqs., of counsel

MILLS, Commissioner.--Petitioner, a member of the Board of Education of the Lewiston-Porter Central School District (“board”), challenges the board’s employment of William H. Arrington, III, and Theresa A. Demers, as teachers.  The appeal must be dismissed.

On April 23, 2008, the board contracted with the United States Air Force to establish an Air Force Junior Reserve Officer Training Corps unit within the district.

On July 15, 2008, the board approved employment contracts for Arrington and Demers to act as aerospace science instructors in that unit for the period August 1, 2008 through July 31, 2011, by a vote of 6-0.  Petitioner Stepien obstained. 

Petitioner claims that he and the board “are duty bound to employ only qualified teachers and are subject to sanctions for violation of this duty.”  He further claims that neither Arrington nor Demers “established sufficient qualifications for the positions to which they are appointed.”  He asks that I “review” the employment contracts, determine whether Arrington and Demers are qualified for the positions to which they were appointed, and void either or both appointments if I find that they lack sufficient qualifications.

Respondents deny any wrongdoing, and argue that Arrington and Demers are eminently qualified to act as instructors.  Respondents point out that both Arrington and Demers are certified by the Department of the Air Force to teach in an Air Force Junior Reserve Officer Training Corps program.  They further point out that no New York State certification exists for such instructors, but that applications pursuant to Commissioner’s regulation §80-5.6 were pending with the State Education Department at the time the answer was served.  Respondents also argue, among other things, that the petition fails to demonstrate any right to relief.

The appeal must be dismissed.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (seeAppeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

The petition in this appeal fails to satisfy these standards.  The petition merely recites the facts, attaches copies of the employment contracts, and, in essence, asks me to decide whether or not Arrington and Demers should have been hired as instructors.  The petition alleges no wrongdoing on the part of respondents, and fails to specify in what manner the appointments were improper.  In an appeal brought pursuant to Education Law §310, the Commissioner of Education exercises appellate, not original jurisdiction (Appeal of Ovile, 47 Ed Dept Rep 25, Decision No. 15,610). 

The appeal must also be dismissed as moot.  During the pendency of the appeal, the Office of Teaching Initiatives of the State Education Department issued visiting lecturer licenses to both Arrington and Demers for the 2008-2009 school year pursuant to Commissioner’s regulation §80-5.6.

In view of this disposition, I need not address the parties’ remaining claims. 

I must, however, address the discord which appears to prevail in the board of education of this district.  This is the sixth appeal from this district in less than 15 months (Appeal of Lilly, 47 Ed Dept Rep 268, Decision No. 15,692; Appeals of Stepien and Lilly, 47 id. 388, Decision No. 15,732; Appeal of Waechter, 48 id. ___, Decision No. 15,853; Appeal of Palmeri, 48 id. ___, Decision No. 15,859; and Appeal of Laub, et al., 48 id. ___, Decision No. 15,923).

It appears that the members of this board may be more interested in suing each other and pursuing old grudges than they are in managing the school district in a proper and efficient manner.

This appeal is particularly egregious.  Mr. Stepien, an attorney admitted to practice in this State for 15 years, clearly had no serious reason to bring this appeal.  If I had the authority to impose sanctions, I would seriously consider doing so.

Because I am concerned about the dysfunctional manner in which the board is currently operating, I am sending a copy of this decision to the District Superintendent, with the request that he meet with this board to address the governance issues of this board.