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Decision No. 16,228

Appeal of JAMES F. CARRION from action of John MicGlire, President of the Board of Education of the Warrensburg Central School District, regarding district email accounts, and application for the removal of John MicGlire as Board President.

Decision No. 16,228

(June 3, 2011)

Judge & Duffy, attorneys for respondent Board of Education of the Warrensburg Central School District, Monica A. Duffy, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner, a member of the Board of Education of the Warrensburg Central School District (“board”) appeals the actions of board president John MicGlire (“MicGlire”) regarding school district email accounts and seeks his removal as board president.  The appeal must be dismissed and the removal application denied.

The Warrensburg Central School District (“district”) provides a general email address for the board and individual email addresses for each member.  Such email addresses are posted on the district’s website.  The record reflects that, since at least 2009, the board has experienced internal discord, some of which has occurred among board members via their district email accounts. 

Petitioner contends that, in response to this situation, he informed MicGlire in a March 1, 2010 email that he would “no longer be participating with the WCSD email system.”  By email to MicGlire dated September 24, 2010, a board member recommended posting the following statement on the district’s website regarding the board’s email address: “Message sent to all BOE members except [petitioner] per his request” (the “statement”).  Thereafter, MicGlire requested that the district’s web administrator add the statement to the district’s website.

By email dated October 15, 2010, petitioner notified MicGlire that “failure to remove [the] statement will result in ... the initiation of legal proceedings against you personally as you do not have the authority to change the WCSD web site or direct the Superintendent to do so.”  At its October 25, 2010 meeting, the board discussed this issue as well as concerns about members’ conduct at meetings.  In a November 6, 2010 letter to the board’s vice president, petitioner stated that if, among other things, the statement was immediately removed from the district’s website, he would “reinstitute my [district email address] providing that I have complete control over said email address.  This means that I can block any email address that I deem appropriate without prior approval from anyone.”  The record indicates that the statement was not removed from the district’s website.

This appeal ensued.  Petitioner’s request for interim relief was denied on December 1, 2010.

Although the petition is unclear as to the specific act(s) from which he appeals, petitioner claims that the statement is “inappropriate ... misleading [and] harmful” to his reputation and argues that MicGlire exceeded his authority in violation of district policy by directing district staff to include the statement on the district’s website.  Petitioner also maintains that MicGlire failed to “address the inappropriate conduct directed at” petitioner by other board members.  Petitioner seeks MicGlire’s removal as board president and asks that I direct the district to allow him to “reinstate his WCSD email account” under certain conditions.

The district argues that the appeal must be dismissed for failure to exhaust administrative remedies.

Petitioner’s application for MicGlire’s removal as board president must be denied because the notice of petition is defective.  Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for his or her removal from office pursuant to Education Law §306.  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent (Application of Vendel, 49 Ed Dept Rep 361, Decision No. 16,050; Appeal and Application of Rosten, 49 id. 237, Decision No. 16,014; Application of Barton, 48 id. 189, Decision No. 15,832).  Accordingly, although petitioner served the petition upon MicGlire, the petition did not contain the proper notice and the application must be denied.

In its verified answer, the district correctly notes that petitioner failed to name the district as a party to this appeal.  However, an affidavit of service submitted with the petition indicates that service was effected upon both MicGlire and the district clerk “who is duly authorized to accept service on behalf of the WCSD BOE President John MicGlire.”  Moreover, the district submitted a letter in opposition to petitioner’s request for interim relief and a verified answer in response to the petition.  Since the district had a fair opportunity to respond to the allegations in the petition and there is no demonstrated prejudice, I find under the circumstances of this case that service upon the district clerk and the board president was sufficient to confer jurisdiction over the district (see 8 NYCRR §275.8[a]; Appeal of Lander, et al., 42 Ed Dept Rep 201, Decision No. 14,822).

By letter dated December 22, 2010, the district requested that I consider additional exhibits submitted after its answer was filed, including minutes from the board’s December 13, 2010 meeting and email messages dated December 16, 2010.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Petitioner does not claim any prejudice as a result of these additional exhibits being added to the record.  Therefore, I have accepted the additional exhibits for consideration.

In addition, by letter dated January 3, 2011, petitioner submitted several documents which appear to be intended as reply documents.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

Turning to the merits, I note that 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 petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (seeAppeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  In this case, petitioner is not represented by counsel.  However, even under a liberal interpretation of the regulation, I cannot find that the petition demonstrates that petitioner is entitled to the relief requested.  The record indicates that petitioner voluntarily chose to withdraw from participation in the board’s email system and that a notice was posted on the board’s website to advise the public that a message sent to the board through the email link would not reach petitioner per his request.  While petitioner may object to the phrasing of the notice, other than vague assertions that MicGlire exceeded his authority and that a similar notice was not posted for a former board member who had no computer, petitioner offers no explanation of why notifying the public that he has opted out of the board’s email system is in any way illegal.  The district is not precluded from posting such a notice merely because it was not done in the past.  As a result, petitioner’s request for relief must be denied.

Finally, the record indicates that, since the commencement of this appeal, the board has taken steps to develop policies and procedures relating to its email system.  Such policies and procedures are necessary to assure the proper functioning of the board for the benefit of district residents and I encourage petitioner and MicGlire, as well as the other members of the board, to work together to ensure that this type of internal dispute is resolved by the board through such policies.

In light of this disposition, I need not consider petitioner’s remaining contentions.