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Decision No. 16,350

Appeal of ROBERT J. AMENT from action of the Board of Education of the West Irondequoit Central School District, Superintendent Jeff Crane, Assistant Superintendent for Business William Domm, and Board President Charles Perreaud regarding district expenditures, accounting and reporting practices and application for the removal of Charles Perreaud as board member.

Decision No. 16,350

(April 26, 2012)

Harris Beach, PLLC, attorneys for respondents, Laura M.  Purcell, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals certain actions of the Board of Education of the West Irondequoit Central School District (“board”), Superintendent Jeff Crane (“superintendent”), Assistant Superintendent William Domm (“assistant superintendent”) and School Board President Charles Perreaud (“board president”) (collectively, “respondents”) in relation to several issues, including district expenditures and accounting practices, a 2009 audit and reported graduation rates, which occurred during the period between September 2009 and May 2010.  Petitioner also seeks the removal of the board president.  The appeal must be dismissed and the removal application denied.

Petitioner’s allegations stem from several events including the board’s dissemination of information through public meetings regarding a 2009 roofing project and the project’s related bidding process, a September 2009 Comptroller’s audit of the district’s reserve funds and actions taken by the district subsequent to such report, the distribution of certain literature to students regarding a December 8, 2009 district vote and the board’s publication of high school graduation rates to residents in May 2010.

Petitioner asserts numerous claims against respondents, including “violation of the trust and oath of public office,” intimidation and abuse of authority, and seeks the “dismissal” of the superintendent and assistant superintendent as well as the forfeiture of their pensions, the “formal reprimand and removal/dismissal” of the board president, and “additional disciplinary action and rulings including formal reprimands, warnings and directives addressed to Jeff Crane, William Domm, Charles Perreaud and the West Irondequoit School Board finding them in violation of each and every charge submitted in the petition.”    Petitioner also urges that I order the board to mail an apology to every household concerning the graduation rate data that was distributed to residents in May 2010.

Respondents maintain that petitioner’s claims are untimely, unsupported by fact and without merit.  Respondents contend that the petition fails to state a claim upon which relief can be granted and must be dismissed in its entirety. 

I must first address several procedural matters.  Petitioner’s reply contains numerous new allegations and statements.  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.

The appeal and application 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).

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 Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).

Petitioner commenced this proceeding by personal service on September 2, 2010.  However, the majority of the actions about which petitioner complains occurred between September 2009 and January 2010, with the most recent action, the district’s distribution of graduation rates, occurring in May 2010, nearly four months prior to the commencement of this appeal.  Thus, the latest date upon which petitioner could have commenced this proceeding was in June 2010.  Additionally, petitioner has failed to establish good cause for his delay other than indicating that he was unaware of the time constraints imposed under the Commissioner’s regulations. 

I also note that, to the extent petitioner alleges violations of the Freedom of Information Law (“FOIL”), §89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

Additionally, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Finally, to the extent that petitioner seeks disciplinary action, including dismissal, against the superintendent and assistant superintendent, the appeal must also be dismissed.  Petitioner must seek disciplinary action from the respondent’s employer, the board of education, in the first instance.  Because disciplinary action against a superintendent or assistant superintendent is within the discretion of the employing board of education, petitioner should have brought his complaint to the board of education whose decision may then be reviewed in an appeal to the Commissioner of Education (seeAppeal of Hennessey, 37 Ed Dept Rep 494, Decision No. 13,911).

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