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Decision No. 16,008

Appeal of T.D. and K.D., on behalf of their sons C.D. and S.D., from action of the Board of Education of the City School District of the City of Oswego; Dave White, Sean Madden, Dan Hoefer, James Tschudy, John Dunsmoor, Fred Maxon and Sam Tripp as members of the Board of Education; William W. Crist, Superintendent; Cathy Chamberlain, Assistant Superintendent for Curriculum and Instruction; and G.J., fourth grade teacher, regarding teacher discipline.

Decision No. 16,008

(January 8, 2010)

Michael J. Stanley, Esq., attorney for respondents

STEINER, Commissioner.--Petitioners appeal the refusal of the Board of Education of the City School District of the City of Oswego (“board”) and its superintendent (collectively “respondents”) to discipline and remove their sons’ fourth grade teacher from the classroom.  The appeal must be dismissed.

During the 2008-2009 school year, petitioners’ sons, C.D. and S.D., were in G.J.’s fourth grade class in respondents’ district.  Petitioners assert that G.J. breached the district’s Code of Conduct (“code”) on at least 12 occasions in the way he acted toward his students.  Petitioners contend that G.J.’s teaching methodologies are lacking in instructional content and are demeaning, derisive and punitive.  They contend further that their sons suffered academically.

On January 13, 2009, petitioners notified the superintendent, assistant superintendent and school principal that they would no longer send their children to G.J.’s class.  Two days later, petitioners met with the superintendent, who denied their request for a transfer.  Thereafter, petitioners emailed the board about their concerns.  Six of seven board members, along with the superintendent and principal, met with petitioners and three other parents on January 20, 2009.  At that meeting, it was decided that a teaching assistant would be assigned to aid and support G.J. in the classroom.  On January 26, 2009, petitioners withdrew their sons from the district.

Petitioners assert that the principal, superintendent and board failed to investigate and were unresponsive to their complaints and requests.  They seek an investigation into respondents’ handling of their complaints, removal of G.J. from that fourth grade classroom and from further contact with children, and revisions to the district’s code concerning how future complaints are addressed.

Respondents contend that the petition must be dismissed because it fails to state a claim, fails to set forth a clear and concise statement of petitioners’ allegations and fails to join necessary parties.  Respondents deny that G.J. breached the district’s code and deny that district administrators failed to respond appropriately to petitioners’ concerns and complaints.

I must first address several procedural issues.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  Petitioners must set forth the number of individuals they seek to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  To the extent petitioners seek to maintain their appeal on behalf of other fourth grade students, they have not established common issues of fact and law.  Therefore, class status is denied.

With the exception of the board, the appeal must be dismissed for failure to join and timely serve the remaining 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).

Petitioners served the board by serving the district clerk on February 4, 2009.  The board served its answer on February 23, 2009.  Petitioners then served a second copy of the petition on the superintendent and G.J. on March 4, 2009.  Petitioners assert that until they received the board’s answer in which the issue of joinder was raised as a defense, they believed that their initial service of the petition on the district clerk constituted effective service on all individuals named in the caption.  They also claim that individual service upon the superintendent and G.J. should not be required because they are represented by the same attorney as the board, and they suffered no prejudice by late service.

These arguments are unavailing.  Service is required upon each named individual, regardless of representation or lack of prejudice (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).  Furthermore, 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 Delaney, 46 Ed Dept Rep 253, Decision No. 15,498; Appeal of Laurencon, 45 id. 514, Decision No. 15,399).  Petitioners have not demonstrated any unusual circumstances here and their misconception about the process does not excuse their delay in service.

Moreover, as discussed above, all actions complained of in the petition occurred prior to January 26, 2009, when petitioners removed their sons from the district’s schools.  Accordingly, service upon the superintendent and G.J. is untimely and the appeal must be dismissed as to them.  In addition, petitioners never served the individual members of the board or the assistant superintendent for curriculum and instruction.  Therefore, the appeal is also dismissed as to them.

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).

Petitioners submitted three replies in this appeal.  The first reply, served on March 5, 2009, was in response to the board’s answer to the first petition.  Petitioner’s second and third replies were in response to answers by the superintendent and G.J. in response to the second petition.  Since I have determined that this appeal is untimely with respect to the superintendent and G.J., I need not consider the answers and replies submitted by them.

While I have reviewed the first reply, I have not considered those portions, including the attached affidavits, containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  I note that petitioners fail to assert that they could not have obtained the newly submitted affidavits in time to submit with their petition.

Turning to the merits, a board of education has broad powers pursuant to Education Law §1709(13) and (33) concerning the superintendence, management, and control of a school district.  It also has broad discretion to determine whether disciplinary action against employees is warranted (Appeal of Gaynor, 36 Ed Dept Rep 210, Decision No. 13,703; Appeal of Rivenburg, 35 id. 27, Decision No. 13,451; Appeal of Allert, 32 id. 538, Decision No. 12,909).  I will not substitute my judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable laws (Appeal of Rider, 39 Ed Dept Rep 282, Decision No. 14,238; Appeal of Taber, et al., 32 id. 346, Decision No. 12,850).  The record indicates that petitioners were afforded several opportunities to meet with the principal, superintendent, and members of the board.  In addition, the superintendent briefed the board, required the principal to investigate and report on the complaints, conducted his own unannounced observation of G.J. and instituted a plan of action that included providing additional support to G.J.  On the record before me, I find nothing improper about respondents’ handling and investigation of petitioners’ complaints and no basis for substituting my judgment for that of respondents.

Finally, to the extent petitioners request an investigation, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Application of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of Koehler, 46 id. 425, Decision No. 15,553).

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