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Decision No. 16,094

Appeal of William R. Hayes from action of the Board of Education of the Saugerties Central School District regarding a board meeting.

Decision No. 16,094

(July 27, 2010)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Semira Ansari, Esq., of counsel

STEINER, Commissioner.--Petitioner, on behalf of himself and others, appeals the actions of the Board of Education of the Saugerties Central School District (“respondent”) concerning the reading of an anonymous letter at a public board meeting.  The appeal must be dismissed.

At a public board meeting on December 8, 2009, a board member read aloud an anonymous letter which criticized district employees.  Petitioner requested a copy of the letter on December 18, 2009, but did not receive it until January 22, 2010.  This appeal ensued.

Petitioner alleges that the anonymous letter was disrespectful to teachers and contrary to respondent’s code of ethics and Education Law §1709(18).  Petitioner seeks a letter of apology from respondent to the teaching staff for reading the letter, an agreement by respondent not to read anonymous letters in a public forum in the future, or, in the alternative, requests that I chastise respondent for alleged unethical behavior.  Respondent contends among other things that the appeal is untimely and requests that the petition be dismissed.

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 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 appeal must be dismissed as untimely.  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 anonymous letter was read at a board meeting held on December 8, 2009, and petitioner did not commence this appeal until January 26, 2010, more than 30 days later.  Petitioner’s appeal solely relates to respondent’s actions on December 8, 2009.  Petitioner’s belated receipt of a copy of the letter does not excuse his delay, given that petitioner was present at the December 8 meeting and personally heard and observed the alleged misconduct at that time.  Moreover, petitioner could have requested to supplement the record at any time pursuant to §276.5 of the Commissioner’s regulations.

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