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Decision No. 16,455

Appeal of PAMELA LEVENDUSKY from action of the Board of Education of the Norwood-Norfolk Central School District and Superintendent Elizabeth Kirnie regarding board and administrative conduct.

Decision No. 16,455

(January 29, 2013)

Silver & Collins, attorneys for respondents, Andrew W. Silver, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the actions of the Board of Education of the Norwood-Norfolk Central School District (“respondent” or “board”) and superintendent Elizabeth Kirnie (“superintendent”) (collectively “respondents”) relating to alleged inappropriate conduct.  The appeal must be dismissed.

Although the petition is unclear, petitioner appears to allege that the board and superintendent engaged in acts of “bullying” and harassment against district children, teachers and staff. The record indicates that after contacting various government officials, petitioner commenced this appeal pursuant to Education Law §310 on September 19, 2011.  Petitioner appears to request that I consider her submissions, which include letters, Facebook postings, petitions and questions presented to the board, as “good cause shown” and conduct an investigation into the allegations specified therein.  These documents discuss various allegations including violations of the Open Meetings Law (“OML”), the Freedom of Information Law (“FOIL”), the district’s code of conduct, board resolutions, as well as acts of unfairness, unexcused absenteeism and alleged conflicts of interest on the part of various board members.  Petitioner acknowledges that the acts complained of are outside of the 30 day time limit to bring an appeal pursuant to Education Law §310, but requests I excuse her delay because she had difficulty assembling the submitted documents.

Respondents deny petitioner’s allegations and contend that the petition must be dismissed as untimely and for failure to state a claim upon which relief may be granted.  Respondents argue that the petition does not contain a clear and concise statement of the petitioner’s claims and that petitioner was not personally “aggrieved.”  Respondents contend that, even if I find that petitioner articulated claims against the district, petitioner nevertheless failed to comply with §277.1 of the Commissioner’s regulations for seeking removal of the board’s trustees or the superintendent.  Respondents also contend that the Commissioner lacks jurisdiction to adjudicate alleged FOIL and OML violations.

Initially, 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 (see 8 NYCRR §275.10).  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).  The petition in this matter essentially consists of a request for an investigation with 19 paragraphs identifying petitioner’s exhibits, which comprise a collection of letters, emails, Facebook postings, petitions, and questions presented to the board.  Petitioner appears to assert that these documents establish various instances of alleged wrongdoing on the part of various board members, the superintendent and others.

While the petition is unclear as to what petitioner’s precise claims are and the specific facts and circumstances giving rise thereto, the petition itself references documents and exhibits ranging in date from February 2010 to May 2011.  As petitioner acknowledges, 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).  Petitioner commenced this appeal in September 2011.  The only reason petitioner offers for her delay is that she could not gather documents needed to file her appeal.  Under these circumstances, I find no basis to excuse petitioner’s delay (seeAppeal of Thompson, 47 Ed Dept Rep 309, Decision No. 15,706; Appeal of Business Systems of CNY, Inc., 46 id. 464, Decision No. 15,564).  Accordingly, the appeal must be dismissed as untimely.

Moreover, the only relief petitioner seeks is an investigation into respondents’ “inappropriate decisions, actions, and lack of leadership and accountability....”  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).  Accordingly, the appeal must be dismissed because the sole relief sought by petitioner is beyond the authority of the Commissioner to grant (see Appeals of Donahue, et al., 52 Ed Dept Rep, Decision No. 16,431; Appeal of Baker, 39 id. 690, Decision No. 14,350).

To the extent petitioner attempts to challenge alleged OML or FOIL violations, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the OML 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).  Additionally, Section 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 OML and FOIL allegations raised in this appeal.

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