Decision No. 16,907
Appeal of a STUDENT WITH A DISABILITY, by her parents, from action of the Board of Education of the Oceanside Union Free School District regarding school assignment and application for the removal of members of the board.
Decision No. 16,907
(May 18, 2016)
Frazer & Feldman, LLP, attorneys for respondent Oceanside Union Free School District, Laura A. Ferrugiari, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal from action of the Board of Education of the Oceanside Union Free School District (“respondent” or “board”) regarding their daughter’s school assignment. They also seek the removal of unspecified board members. The appeal must be dismissed and the application for removal must be denied.
During the 2014-2015 school year, petitioners’ daughter (“the student”) was an elementary school student in respondent’s district. Pursuant to the student’s Individualized Education Program (“IEP”) for the 2014-2015 school year, the Committee on Special Education (“CSE”) placed the student in the elementary school in her “home public school district” (“School A”). According to the board’s Policy #3102.1, “Assignment of Students to Schools,” students are generally “assigned to a school as determined by place of residence and the nature and availability of appropriate programs.” According to respondent, no exceptions exist absent extraordinary circumstances.
By letter dated June 18, 2014, petitioners asked the district’s assistant superintendent for business (“assistant superintendent”) if the student could be enrolled in the elementary school attended by her brother (“School B”), who was placed there pursuant to his IEP, which requires integrated co-teaching, since School B is the only school in the district that offers such a placement for his grade level. Petitioners provided a number of reasons for their request, including that their children are extremely close and would benefit from attending the same school, and that petitioners are inconvenienced by having to attend school functions at two different schools. On June 18, 2014, after meeting with petitioners, the assistant superintendent denied petitioners’ request as contrary to district policy.
On July 8, 2014, petitioners made a similar request to the superintendent. By letter dated July 10, 2014, the superintendent denied petitioners’ request, explaining that no exception could be made absent extraordinary circumstances, for which petitioners’ concerns did not qualify.
By letter dated July 14, 2014, petitioners appealed to the board. By letter dated July 18, 2014, the board president upheld the superintendent’s decision but gave petitioners an opportunity to submit additional information in support of their request. By letter dated July 21, 2014, petitioners requested that the board convene an executive session to consider their request. The letter did not contain any additional information to support such request. The board held an executive session on August 19, 2014, and by letter dated August 20, 2014, it upheld the superintendent’s determination and denied petitioners’ request. The board determined that petitioners did not provide sufficient new information to overturn the prior determination. However, the board offered to allow the student to continue at School C for the 2014-2015 school year, and to provide transportation to School C, to alleviate petitioners’ concern about having to transition her to a new school.
Petitioners subsequently filed a complaint with the United States Department of Education’s Office of Civil Rights (“OCR”) alleging that the board retaliated against petitioners for their filing of a complaint with the Department’s Special Education Quality Assurance Office (“SEQA”). According to petitioners, following the filing of their SEQA complaint, an individual board member and his non-board member friend disclosed confidential information about petitioners’ children to members of the community and on Facebook, and numerous employees of the district, including a senior typist clerk in the district’s special education office, “liked” the post on Facebook. By letters dated October 27, 2014 and November 26, 2014, petitioners notified the superintendent and board president about such disclosures. By letter dated November 30, 2014, petitioners requested that the board member’s friend be banned from district property and events and that the board member be removed from office. By letter dated December 1, 2014, petitioners requested that the senior typist clerk in the district’s special education office be re-assigned. By separate letters dated December 15, 2014, the district determined that no basis existed to take action against the individual board member and that the community member and certain district employees did not reveal confidential information or engage in any acts of cyberbullying. This appeal ensued.
Petitioners assert numerous claims against the board, including that the board arbitrarily and capriciously refused to overturn the superintendent’s decision to place the student in School A; denied their request in retaliation for prior complaints they filed with the Department; disclosed confidential information about their children to members of the community in retaliation for their subsequent filing of a complaint with OCR; and breached its fiduciary duties and ignored conflicts of interest. Petitioners seek the removal of all board members for violating board policies and fiduciary duties. Petitioners also request that I take the following actions:
exercise authority to review and approve all manner of business proposed by the Board until ... the Board is acting rationally and prudently and fulfilling its fiduciary responsibilities to protect public assets and promote the educational needs of the District....
Respondent contends that the appeal must be dismissed as untimely and for failure to join necessary parties. Respondent also argues that the Commissioner lacks authority to grant certain relief requested by petitioners. Finally, respondent asserts that the petition fails to state a claim for which relief can be granted; petitioners failed to meet their burden of establishing the facts upon which they seek relief or a clear legal right to the relief requested; and that petitioners have failed to establish a wilful violation of law, neglect of duty, or wilful disobedience of any decision, rule, or regulation, so as to establish grounds for removal.
Respondent submits that petitioners’ reply must be rejected because it contains new facts, information, and legal arguments not responsive to the issues raised in the answer, that could have been included in the petition and/or that buttress the allegations in the petition. 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. However, I have considered the affidavit from petitioners’ process server, which is included as an exhibit to the reply and is responsive to respondents’ affirmative defense of lack of proper service with respect to the individual board members.
By letter dated February 17, 2015, respondent requests permission pursuant to 8 NYCRR §276.5 to submit a sur-reply affirmation to respond to the new information raised in petitioners’ reply and to submit a January 23, 2015 OCR decision that petitioners received prior to the submission of their reply but which was not submitted with their reply. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). Moreover, a sur-reply may not improperly buttress allegations that should have been asserted in an answer (see Appeal of Kadukara, 51 Ed Dept Rep, Decision No. 16,345; Appeal of Butler and Dunham, 50 id., Decision No. 16,103; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194). In addition to the January 23, 2015 OCR decision, the sur-reply affirmation contains an affirmation from one of the district’s attorneys and affidavit from an individual board member in response to new allegations raised in petitioners’ reply regarding the alleged disclosure of confidential information and surrounding investigation. It also contains an affidavit from the district clerk in response to the process server’s affidavit submitted with petitioners’ reply. Petitioners did not file an objection to this request. As noted above, I have not considered any portion of petitioners’ reply that is not responsive to new material or affirmative defenses in the answer. To the extent that any portion of the sur-reply is in response to claims improperly raised in the reply, therefore, there is no need for me to consider such portion of respondent’s sur-reply affirmation (see Appeal of M.I.B., 55 Ed Dept Rep, Decision No. 16,847). However, I have considered the portions of the sur-reply affirmation that incorporate by reference the January 23, 2015 OCR decision, which relates to claims raised in the instant appeal but was not available at the time respondent served its answer, and also the affidavit from the district clerk on the issue of service of process.
By letter dated May 27, 2015, petitioners request permission pursuant to 8 NYCRR §276.5 to submit “additional information in support of their pending appeal” in the form of a letter and additional exhibits regarding the alleged disclosure of confidential information. Respondent objects to this request on the grounds that petitioners are attempting to add new facts and allegations that are not responsive to the affirmative defenses raised by respondent, or which were available to petitioners when they served their petition, or which merely seek to buttress the petition. Respondent requests that, should I accept petitioners’ new submission, it be allowed pursuant to 8 NYCRR §276.5 to submit a “Second Sur-reply Affirmation.” I have reviewed petitioners’ May 27, 2015 submission, which attempts to raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal, or that buttress claims raised in the petition. Moreover, I note that petitioners had an opportunity to submit a memorandum of law in accordance with §276.4 of the Commissioner’s regulations, but chose not to do so. Therefore, I have not considered either petitioners’ May 27, 2015 submission or respondent’s “Second Sur-Reply Affirmation.”
To the extent petitioners seek to remove individual board members, the application must be denied for failure to join necessary parties. 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). Petitioners appear to request the removal of each of the seven board members for alleged violation of board policies, breach of fiduciary duties, and conflicts of interest. However, petitioners failed to name any board members in the caption of the notice of petition or petition. It is the notice of petition which alerts a party that he or she is required to appear and answer the allegations contained in the petition (Appeal of Affronti, 54 Ed Dept Rep, Decision No. 16,756). Petitioners’ failure to name such board members thus results in a failure to properly join as respondents each individual board member whose removal is sought, warranting dismissal of the application as against each (see Appeal of Affronti, 54 Ed Dept Rep, Decision No. 16,756).
The record also indicates that petitioners failed to personally serve any individual board members with a copy of the petition and notice of petition. Section 275.8(a) of the Commissioner’s regulations, which is made applicable to removal proceedings by §277.1, provides in pertinent part:
A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at respondent’s residence with some person of suitable age and discretion ... or as otherwise directed by the Commissioner.
The record contains seven affidavits of service indicating that seven copies of the petition in this matter were served on the district clerk in an attempt to effectuate service on each of the seven individual board members. Respondent provides an affidavit from the district clerk stating that she accepted service only on behalf of the board and that she is not authorized to accept service on behalf of the individual board members. In response, petitioners submit an affidavit from their process server stating that the district clerk gave “specific assurance” that she was authorized to accept service on behalf of the individual board members. In its sur-reply, respondent provides a second affidavit from the district clerk indicating that she never informed the process server that she was authorized to accept service on behalf of the individual board members. 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). In light of the conflicting affidavits, I cannot conclude that there was valid service on the individual board members (see Appeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660), and the record does not indicate that any request for alternate service was made to the Commissioner. Because the individual board members were not personally served, the application for removal must be denied (see Appeal of Nelson, 55 Ed Dept Rep, Decision No. 16,845; Appeal of Wachala, 50 id., Decision No. 16,155; Appeal of Klock, 49 id. 214, Decision No. 16,005).
I note that petitioners request in their reply, that if service upon the individual board members is deemed defective, “that the Commissioner proceed with this petition as against the Board as an entity pursuant to Education Law § .” As discussed above, section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877). Petitioners provide no affidavit of service establishing service upon the board. Indeed, the seven affidavits of service each state that the petition was being served on each individual board member by delivery to the district clerk. Nonetheless, both affidavits from the district clerk indicate that she accepted service on behalf of the board and the board has appeared in this appeal through its counsel and has not asserted that the appeal should be dismissed as to the board for lack of proper service. Therefore, I decline to dismiss the appeal with respect to allegations against the board.
Respondent argues that the appeal is untimely, as it was commenced on January 7, 2015, more than 30 days after the actions to which petitioners object. 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). Petitioners challenge respondent’s August 20, 2014 determination to place their daughter in School A, or alternatively, to allow her to remain in School C with transportation, and the alleged disclosure of confidential information. Petitioners do not dispute that the August 20 letter was a final determination. Although petitioners claim that they received the determination “[d]ays before the current school year was scheduled to begin,” the record is unclear as to when petitioners actually received the determination. However, the record indicates that petitioners received the determination on or before August 21, 2014 as, by letter dated August 21, 2014, petitioners complained to the board president that they were “wholly dissatisfied” with respondent’s August 20, 2014 determination. Even affording the usual five days for mailing, petitioners are deemed to have received the determination on August 25, 2014, and therefore had until September 24, 2014 to commence an appeal with respect to the August 20, 2014 determination.
With respect to the alleged disclosure of confidential information, petitioners assert that the board improperly disclosed confidential information about their children to members of the community in retaliation for their filing of the OCR complaint and failed to take any action upon being notified by petitioners that confidential information had been disclosed by board members and was in danger of further dissemination. The record indicates that petitioners first complained to the board by letter dated October 27, 2014 that it “very recently” came to their attention that an individual board member may be disclosing confidential information about petitioners’ “on-going dispute” with respondent. Petitioners also claim that on November 27, 2014, a friend of that board member published information obtained from the board member on Facebook in an Oceanside community group with over 2,000 members, and that numerous employees of the district, including a senior typist clerk in the district’s special education office, “liked” that post on Facebook.
According to petitioners’ affidavits of service, the petition was served on January 7, 2015, which is more than 30 days after both the alleged disclosure of confidential information and petitioners’ receipt of the August 20, 2014 determination.
Petitioners acknowledge that their appeal is untimely. However, they assert that they were not advised that they had the right to appeal respondent’s determination and that they filed multiple complaints with OCR, erroneously believing that OCR was the only remaining option to address respondent’s alleged misconduct. They assert that, as pro se litigants, they are entitled to a liberal interpretation of the Commissioner’s regulations. Nevertheless, 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). The record contains no evidence that any unusual circumstances are present here, and therefore, the appeal must be dismissed as untimely.
Additionally, with respect to petitioners’ claim that the August 20, 2014 determination was made in retaliation for petitioners’ previous complaint to SEQA, the record before me indicates that petitioners have raised the identical issues and incidents in a complaint filed with OCR. In a decision dated January 23, 2015, OCR determined that there was insufficient evidence to substantiate the allegation that the district refused to allow the student to attend the same school as her brother in retaliation for filing a complaint with SEQA. OCR determined that the district proffered a legitimate, non-retaliatory reason for refusing to assign the student to the same school as her brother (that petitioners had not demonstrated extraordinary circumstances for such assignment) and that the proffered reason was not a pretext for retaliation because the district’s actions were consistent with its policies. Having chosen that forum in which to litigate their claims, petitioners have made an election of remedies and may not relitigate the same issues in a proceeding instituted pursuant to §310 of the Education Law (Appeal of Green, 31 Ed Dept Rep 512, Decision No. 12,717).
Finally, with respect to petitioners’ claims against the board, I note that, as stated above, 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). In addition to their request for removal of the board members, discussed above, petitioners seek only the following relief:
The Commissioner exercise authority to review and approve all manner of business proposed by the Board until such time as the Commissioner is satisfied that the board is acting rationally and prudently and fulfilling its fiduciary responsibilities to protect public assets and promote the educational needs of the District...
However, 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). Moreover, the Commissioner lacks the authority to act as an overseer over all board business or to appoint such an overseer with the power to substitute his or her opinion and determination for that of the board (see Verbanic v. Nyquist, 41 AD2d 466; Application of Luciano, 55 Ed Dept Rep, Decision No. 16,828. Accordingly, I lack the authority to grant the relief requested by petitioners and the matter is thus academic.
END OF FILE
 According to the record, the student attended a different elementary school (“School C”) pursuant to her IEP for the 2013-2014 school year, as School C was the only school that offered integrated co-teaching services for her grade level.
 According to petitioners, by letter dated August 13, 2014, petitioners requested that the board include in its consideration two additional documents: the board president’s July 18, 2014 letter and a New York State Education Department (“Department”) decision dated August 11, 2014, sustaining a special education complaint against the district. However, respondent asserts that it has no record of receipt prior to the commencement of this appeal and, even if it had, the documents have no bearing on its decision with respect to the student in this appeal.
 Respondent notes that petitioners are both practicing attorneys and thus are held to a higher standard than non-attorney pro se litigants.