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Decision No. 16,489

Application of ROBIN M. WOLPIN for the removal of Roger Clough as Superintendent of the Massena Central School District.

Decision No. 16,489

(June 24, 2013)

The Law Firm of Frank W. Miller, attorneys for respondents, Frank W. Miller, Esq., of counsel

KING, JR., Commissioner.--Petitioner seeks the removal of Roger Clough (“respondent”) as Superintendent of the Massena Central School District. The application must be denied.

While petitioner’s claims and the factual basis underlying her application are not clearly articulated, she appears to assert that Clough should be removed because he allegedly prohibited public attendance at finance committee meetings in violation of the Open Meetings Law, and misused district funds, to retain a “private” attorney. Petitioner also asserts general dissatisfaction by staff and retired staff about respondent’s ability to lead the Massena Central School District. Petitioner requests that I launch an investigation into these allegations and remove Clough from his position as superintendent.

Respondent asserts that the application is untimely and must be dismissed for failure to state a claim upon which relief may be granted. Respondent also argues that petitioner lacks standing to bring this application and that the Open Meetings Law claims are outside the Commissioner’s jurisdiction.

I must first address two procedural issues, beginning with petitioner’s reply. The purpose of a reply is to respond to new material or affirmative defenses set for thin 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.15908; 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.

Next, I will address the procedural issue of standing. Petitioner is a district resident and thus has standing to bring a removal proceeding pursuant to Education Law §306 (Application of Wilson, 41 Ed Dept Rep 196, Decision No. 14,663; Application of Eisen kraft, 38 id. 553, Decision No. 14,092). Therefore, I will not dismiss the application for lack of standing.

Petitioner submits newspaper articles to support her position. It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324). Therefore, I have not considered such articles for the veracity of their content.

However, the application for removal must be denied because the notice of petition is defective. Commissioner’s regulations require that the notice accompanying a removal application specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]). In this case, petitioner failed to give such notice. 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 Carrion, 50 Ed Dept Rep, Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).

Moreover, the removal application must be denied 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). The application was served on May 11, 2012. Although the application is not entirely clear as to the specific factual bases underlying petitioner’s claims, it appears that the conduct about which she complains occurred prior to April 11, 2012.To that extent, the application must be denied as untimely.

Moreover, the application must be denied on the merits. Education Law §306 authorizes the Commissioner of Education to remove a superintendent of schools for wilful violation or neglect of duty or wilful disobedience of any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). Petitioner has failed to meet her burden in this case.

Based on the affidavits submitted by respondent in opposition to this application, it appears that the district was not billed for, and the district did not pay for the legal services provided to Clough about which petitioner complains. Therefore, based upon the record before me, I cannot find that respondent’s actions were improper or in any way warrant his removal.

Moreover, to the extent that petitioner appears to allege that Clough should be removed because he has lost the public trust and the trust of the majority of his employees, the application must be denied for failure to carry her burden of proof. Petitioner merely asserts general and conclusory allegations about “mismanagement” and “mistrust” in the district; however, she fails to provide any evidence to support her claim that these generalized allegations warrant Clough’s removal.

To the extent that petitioner raises Open Meetings Law allegations, 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 andEl-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 requests that I conduct an investigation into these allegations, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed DeptRep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276,Decision No. 15,857).

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