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Decision No. 16,054

Appeal of P. STEPHEN LAMONT from action of the Board of Education of the City School District of the City of Rye, Clarita Zeppie, principal, and Cari Caulway, teacher, regarding employee discipline.

Decision No. 16,054

(April 21, 2010)

Ingerman Smith, L.L.P., attorneys for respondents, Jaclyn G. Bernstein, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of City School District of the City of Rye (“board”) not to discipline principal Clarita Zeppie (“Zeppie”) and teacher Cari Caulway (“Caulway”) (collectively referred to with the board as “respondents”).  The appeal must be dismissed.

During the 2008-2009 school year petitioner’s son was enrolled in Caulway’s first grade class.  On June 1, 2009, an incident occurred between petitioner and Caulway in her classroom after dismissal concerning homework.  On June 3, 2009, Zeppie met with petitioner to discuss the June 1, 2009 incident.  The superintendent of schools requested an investigation.  By letter dated August 6, 2009 to petitioner, the superintendent indicated that due to privacy concerns he would not share any specific actions that the district may or may not have taken against a particular employee.  By email dated August 10, 2009, petitioner appealed the superintendent’s determination to the board which denied the appeal by letter dated September 23, 2009.  This appeal ensued.

Petitioner alleges that he was treated disrespectfully by Caulway and that he was threatened by Zeppie in violation of Federal Civil Rights Laws.  Petitioner contends that the superintendent was incorrect that privacy laws prevented him from disclosing what actions, if any, would be taken against Zeppie and Caulway.  Petitioner alleges that he suffered fear, intimidation, public humiliation, and public embarrassment which impeded his free speech rights and his right to petition government.  Petitioner also alleges a denial of equal protection, emotional upset and anxiety.  Finally, petitioner maintains that as a result of the actions of Zeppie and Caulway he has suffered damages in the amount of $250,000,000.  Petitioner requests that Caulway be suspended for 30 days without pay and that Zeppie be terminated.  Petitioner also requests an order permanently enjoining respondents from making future threats against him.

Respondents allege that petitioner fails to state a claim upon which relief can be granted and that he lacks standing.  Respondents also allege that petitioner engaged in inappropriate behavior in violation of school rules and that respondents acted in accordance with district policies.  Finally, respondents allege that the Commissioner lacks jurisdiction to grant the relief requested.

Respondents object to 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 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, nor have I entertained petitioner’s request for additional relief.

Respondents contend that petitioner does not have standing to bring this appeal.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of Himmelberg and Little, 46 id. 228, Decision No. 15,490; Appeal of Riccinto, 46 id. 39, Decision No. 15,435).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of L.A., et al., 46 id. 450, Decision No. 15,561).  Inasmuch as petitioner objects to the manner in which he was treated by Caulway and Zeppie and the board’s denial of his appeal, he has standing for purposes of Education Law §310.

To the extent that petitioner claims that respondents have violated his constitutional rights, the appeal must be dismissed.  An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a regulation (Appeal of Seton Catholic  Central High School, et al., 46 Ed Dept Rep 190, Decision No. 15,481; Appeal of Johnson, 45 id. 446, Decision No. 15,377; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of Seton Catholic  Central High School, et al., 46 Ed Dept Rep 190, Decision No. 15,481).

The appeal also must be dismissed to the extent petitioner requests that I suspend Calway without pay and terminate Zeppie’s employment.  To dismiss or discipline a tenured employee, charges must be instituted by the board of education pursuant to Education Law §3020-a, and I have no authority to order the suspension or termination of tenured employees for the alleged reasons in the absence of a §3020-a hearing.  A board of education has broad discretion to determine whether to bring disciplinary proceedings against tenured employees (seeAppeal of Carney, 33 Ed Dept Rep 430, Decision No. 13,103; Appeal of Allert, 32 id. 538, Decision No. 12,909).

Petitioner requests an order permanently enjoining respondents from making future threats against him.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Vaught, 46 id. 398, Decision No. 15,544).  Therefore, I will not entertain petitioner’s request for future relief.

Finally, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

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