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Decision No. 16,722

Appeal of L.J., on behalf of his daughter A.J., from action of the Board of Education of the Patchogue Medford Union Free School District regarding employee discipline.

Decision No. 16,722

(March 12, 2015)

Guercio & Guercio, LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals a determination of the superintendent of schools in the Patchogue Medford Union Free School District (“superintendent”) regarding certain alleged conduct toward his daughter by district employees.  The appeal must be dismissed.

Petitioner’s daughter, A.J., attended elementary school in the Patchogue Medford Union Free School District (“district”) during the 2010-2011 school year.  On April 6, after receiving a complaint from a parent that her child had lost $4.00 in his classroom, A.J.’s teacher, Kevin Toolan, commenced an investigation regarding the missing money.  According to the record, Mr. Toolan and another teacher made general announcements in their respective classrooms requesting the return of missing money and stating that any student involved would be permitted to remain anonymous.

Apparently as part of the investigation, both teachers spoke with several students, including A.J.’s brother in another classroom.  On April 8, A.J. asked Mr. Toolan whether the missing money had been found.  Mr. Toolan informed her that it had not been found and asked whether she knew something about it.  A.J. responded that she recalled seeing the money in the possession of “someone other than the owner” and that it had been found in the bathroom.  As a result, the money was recovered.  Sometime thereafter, petitioner contacted the building principal, Judy Soltner, regarding the questioning of A.J. and her brother about the incident. 

Although not entirely clear from the record, it appears that a second incident occurred regarding A.J.’s use of a school computer.  Thereafter, petitioner met with the superintendent, Michael Locantore, to discuss concerns about the treatment of his daughter during the two incidents.  On May 3, petitioner emailed the superintendent reiterating his complaints of Mr. Toolan’s “ongoing mistreatment” of his daughter, claiming that he indirectly and directly accused A.J. regarding the missing money, inappropriately enlisted another teacher to “interrogate” A.J.’s brother, inappropriately questioned A.J., and accused A.J. in front of her class of breaking a school computer.  Petitioner also complained of Principal Soltner’s “complacent attitude” regarding the matter. 

According to the record, both Ms. Soltner and Mr. Locantore investigated petitioner’s complaints.  By letter dated May 6, 2011, the superintendent notified petitioner that he had conveyed petitioner’s concerns to the relevant staff members and indicated that the matter apparently was resolved.  This appeal ensued.

Subsequent to commencing this appeal, on or about June 13, 2011, petitioner filed a discrimination complaint, based on the above described facts, with the district’s assistant superintendent of human resources, who is designated to investigate such discrimination complaints.[1]

Here, petitioner claims that Mr. Toolan’s conduct violated A.J.’s right to “a climate of mutual respect and dignity” as stated in the district’s Code of Conduct.  Petitioner alleges that Ms. Soltner, as principal, failed in her duty to be “responsible for enforcing the code of conduct consistently and ensuring that all cases are resolved promptly and fairly.”  Petitioner also asserts that the superintendent failed to ensure that the case was resolved promptly and fairly.   As relief, petitioner asks that “appropriate disciplinary actions” be taken against Mr. Toolan, and that his daughter receive a verbal and written apology from Mr. Toolan, Ms. Soltner and Superintendent Locantore.

Respondent asserts that the appeal is untimely, that petitioner failed to join necessary parties as respondents, that I lack jurisdiction to grant the relief sought and that petitioner failed to establish a claim, warranting dismissal of the appeal.

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 Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Petitioner appeals the May 6, 2011 decision of the superintendent.  Affording five days for mailing, petitioner’s time to appeal that decision ended on June 11, 2011.  However, the appeal was commenced on June 13, 2011, outside the required time period and, therefore, must be dismissed.

In addition, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Petitioner seeks relief against Mr. Toolan, Ms. Soltner and Superintendent Locantore; however, they were not named as respondents or served with the notice and petition. Each of them would be adversely affected by a determination in favor of petitioner.  Thus, they are necessary parties and should have been joined as respondents.  Petitioner’s failure to join them warrants dismissal of the appeal. 

Even if the above - referenced necessary parties had been joined, I also agree with respondent that I would lack jurisdiction to grant the relief sought by petitioner - an apology from Mr. Toolan, Ms. Soltner and Mr. Locantore, as well as “appropriate disciplinary actions” against Mr. Toolan (Appeal of J.K., 41 Ed Dept Rep 337, Decision No. 14,705; Appeal of Philips, 41 id. 10, Decision No. 14,595).  To extent that petitioner seeks my intervention in obtaining an apology, he is in effect asking that I engage in some form of discipline against district staff.  I have previously held that it is the board of education that has the authority and responsibility to determine whether disciplinary action against a district employee is warranted, not the Commissioner (Appeal of J.K., 41 Ed Dept Rep 337, Decision No. 14,705; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).

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







[1] According to the assistant superintendent’s affidavit, he subsequently investigated petitioner’s discrimination complaint and found it to be without merit.  That determination is not before me in this appeal.