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Decision No. 16,830

Appeal of DIANE PAYSON, on behalf of certain students, from action of the Board of Education of the Mount Pleasant Cottage Union Free School District regarding school counselor positions and guidance program services.

Decision No. 16,830

(October 1, 2015)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Steven M. Latino, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the Mount Pleasant Cottage Union Free School District (“respondent”) regarding the elimination of certain school counselor positions and implementation of its guidance program.  The appeal must be dismissed.

Petitioner is a certified school counselor and was previously employed in the Mount Pleasant Cottage Union Free School District, a special act school district.  The record indicates that the district has made staff reductions in its counseling program.  Respondent voted at its May 28, 2014 meeting to reduce petitioner’s full-time position to a part-time position, effective June 30, 2014. Thereafter, at its September 22, 2014 meeting, respondent voted to eliminate petitioner’s position, effective September 23, 2014.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 20, 2014.

Petitioner contends, on behalf of students in grades nine through twelve, that respondent’s guidance counselor program does not meet the requirements set forth in §100.2 of the Commissioner’s regulations.  Petitioner alleges that, following the elimination of her position, there are no certified school counselors in the district and that respondent is improperly using untrained certified social workers and school psychologists to take on the duties of a school counselor.  She seeks reinstatement of her full-time school counselor position in the guidance program, with compensation for lost salary.

Respondent asserts that petitioner lacks standing to maintain the appeal on behalf of students in its school, and that the appeal is untimely.  Respondent contends that petitioner fails to demonstrate a clear legal right to the relief requested.  Respondent maintains that its guidance program is in compliance with all applicable requirements.  Finally, respondent objects to the scope of petitioner’s reply.

I will first address several procedural issues.  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.

With respect to the issue of petitioner’s standing to maintain the appeal, an individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).

The gravamen of petitioner’s appeal is that, by eliminating her school counselor position and those of others, respondent is not in compliance with Commissioner’s regulations in providing guidance programs to students in grades nine through twelve.  Petitioner does not allege that she is the parent of any student in respondent’s district, and she may not assert the rights of children not her own (Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631; Appeal of Walker, et al., 53 id., Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030).  Thus, petitioner has failed to demonstrate any present injury or violation of her rights with respect to the students’ receipt of alleged inadequate guidance program services.  Accordingly, to the extent that petitioner asserts claims on behalf of students, she lacks standing to maintain the appeal and such claims must be dismissed. 

To the extent that petitioner complains of the loss of her employment as a result of respondent’s alleged noncompliance with Commissioner’s regulations, for which she seeks reinstatement and back pay as relief, she has alleged the requisite personal injury.  Consequently, petitioner has standing to maintain that claim (see Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631).

With respect to timeliness, petitioner’s claims must be dismissed in part.  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).

To the extent that petitioner challenges respondent’s May 28, 2014 action reducing her position, effective June 30, 2014, the appeal is untimely.  Petitioner did not commence this appeal until September 24, 2014, outside the 30 day period.  Consequently, that part of her appeal must be dismissed.

Although petitioner’s challenge to respondent’s subsequent September 22, 2014 action eliminating her position is timely, it must be dismissed on the merits.  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 Rep 523, 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 argues that, in eliminating her school counselor position, respondent is unable to comply with high school guidance program requirements set forth in §100.2(j) of the Commissioner’s regulations.  However, as respondent correctly notes, in Steele v. Bd. Of Educ. of the City of New York, 40 NY2d 456, 466-467 (1976), the Court of Appeals stated:

[i]t is not enough to merely show ... that all guidance counseling positions have been eliminated....  The requisite programs could likely be maintained by utilizing the services of certified personnel whose primary duties are in other positions.  Since there has been no showing that any guidance and counseling programs have been wholly eliminated, we conclude that this portion of the petition was properly dismissed....

Here, according to the record, respondent’s Assistant Principal for Student Services is permanently certified as both a school counselor and a school district administrator.  She supervises several certified school social workers and school psychologists.  Other than speculation, petitioner has not introduced any evidence that respondent is not providing a guidance program in compliance with §100.2(j) of the Commissioner’s regulations.  On this record, I cannot conclude that petitioner has carried her burden and established a clear right to relief.

Although I am constrained to dismiss the appeal, I am mindful that the student population in respondent’s school district consists of students with disabilities and that any failure to provide services prescribed in a student’s individualized education program, including the provision of transition services, may constitute a violation of the federal Individuals with Disabilities Education Act, Article 89 of the Education Law, and/or Part 200 of the Commissioner’s regulations.  Although she has not carried her burden of proof sufficient to warrant relief in this appeal, the record does present issues worthy of review by my Office of Special Education.  Accordingly, I will refer this matter to that office for review to ensure that respondent’s guidance program is sufficient to ensure compliance with requirements of federal and State law pertaining to students with disabilities.

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