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Decision No. 17,012

Appeal of JEFF ROTH from action of the Board of Education of the Farmingdale Union Free School District regarding attendance at school board meetings.

Decision No. 17,012

(December 9, 2016)

Guercio & Guercio, LLP, attorneys for respondent, Randy Glasser, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges action of the Board of Education of the Farmingdale Union Free School District (“respondent”) prohibiting him from attending its board meetings.  The appeal must be dismissed.

Petitioner is a resident of respondent’s school district.  The record in this matter details a difficult relationship between petitioner and members of respondent board and district staff spanning several years.  This is the second appeal filed by petitioner against respondent with regard to the prohibition of attendance at respondent’s school board meetings; the first appeal was decided on February 9, 2016 (see Appeal of Roth, 55 Ed Dept Rep, Decision No. 16,872).  The instant petition reiterates many of the facts and allegations contained in the previous appeal, therefore only those facts from petitioner’s first appeal which are germane to the instant appeal are set forth below.

By letter dated September 18, 2014, respondent notified petitioner that, as a result of his “continuing conduct,” petitioner was “prohibited from entering upon any of the District’s buildings, or grounds of such buildings, including, but not limited to, attending School Board and committee meetings...” for the period of September 18, 2014 through October 18, 2014.  The record indicates that petitioner violated the aforementioned prohibition by attending a board meeting on October 8, 2014.

Thereafter, by letter dated November 6, 2014, respondent notified petitioner that he was prohibited from entering district property for the period of November 7, 2014 through February 7, 2015.  Respondent’s letter set forth the basis for the second ban, including additional violations of the ban imposed on September 18, 2014 that had occurred since the September 18, 2014 letter.

According to respondent, following the expiration of the second ban, petitioner continued to engage in inappropriate behavior.  As a result, respondent notified petitioner in a letter dated March 11, 2015, that he was again prohibited from entering district property for the period of March 12, 2015 through June 30, 2016.  The record indicates that petitioner continually engaged in behavior in violation of this third ban, including leaving multiple voicemails for respondent’s superintendent and entering onto district property on several occasions.  Additionally, on June 29, 2015, petitioner was arrested for trespassing on district property and charged with criminal trespass in the third degree.  A temporary order of protection was issued to respondent’s superintendent against petitioner as a result of the arrest.  Petitioner’s first appeal ensued.  By decision dated February 9, 2016, petitioner’s appeal was dismissed on procedural grounds.  This appeal ensued.

Petitioner asserts that respondent’s action banning him from attending public board meetings is arbitrary and infringes his constitutional right to free speech.  Petitioner also argues that he was denied due process because he was not allowed to protest the bans.  As relief, petitioner requests “a creation of protocol and due process for when a person is portrayed as a potential threat whereas the board initiates [sic] the FBI and/or local police to initiate an investigation” and that I make a “determination of future procedures of due process of suspension or banning from school property for all public school taxpayers.”  Additionally, petitioner seeks monetary damages for pain and suffering, including “public humiliation.”

Respondent raises a number of procedural objections and affirmative defenses.  Respondent contends that the petition and the reply are defective and that the appeal is untimely, moot, and barred by res judicata.  Respondent also contends that petitioner fails to state a claim upon which relief may be granted and, to the extent petitioner seeks monetary damages or an advisory opinion, the Commissioner lacks the authority to grant the relief requested.  On the merits, respondent asserts that its action was rational and consistent with district policy and, thus, was not arbitrary.  Respondent also contends that petitioner was not entitled to due process, as access to schools is not a protected liberty or property interest.

I will first address respondent’s procedural objections.  Sections 275.5 and 275.6 of the Commissioner's regulations require that all pleadings in an appeal to the Commissioner be verified and an affidavit of verification attached.  In addition, 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).  Petitioner’s reply is not verified as required by §§275.5 and 275.6 and includes assertions and exhibits that should have been included in the petition.  By letter dated September 23, 2016, petitioner submitted a verification for his “section 310 appeal.”  The verification claims to verify the attached 310 appeal; however, petitioner does not attach anything other than an affidavit of service.  The affidavit of verification submitted by petitioner on September 23, 2016, neither states that the verification is applicable to the reply, nor attaches the reply to the verification and it is, therefore, not clear what petitioner intended to verify by the September 23 submission.  As such, under these circumstances, the reply was not properly verified in accordance with §§275.5 and 275.6, and I have not considered it (see Appeal of F.M. and C.M., 56 Ed Dept Rep, Decision No. 16,978; Appeal of a Student With a Disability, 46 id. 102, Decision No. 15,454; Appeal of Principio, 39 id. 11, Decision No. 14,157).  Accordingly, I have not considered respondent’s sur-reply.

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).  Additionally, §275.9 of the Commissioner’s regulations requires that the affidavit of service be in substantially the form set forth in that section and that it indicate the name and official character of the person upon whom service was made.  Although petitioner’s affidavit of personal service is notarized, it appears that the district clerk signed the affidavit in the space allotted for the process server and deponent, Nicola Diaz.  Thus, the affidavit of service submitted by petitioner, itself, is defective and does not establish that service was properly effected upon respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Consequently, the affidavit of service is defective and the appeal must be dismissed (Appeal of L.D., 52 Ed Dept Rep, Decision No. 16,382; Appeal of Students with a Disability, 46 id., 59, Decision No. 15,440; cf. Appeal of Grant, 42 id., 184, Decision No. 14,816).

The appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The initial periods of prohibition set forth in respondent’s September 18, 2014 letter (September 18, 2014 - October 18, 2014) and respondent’s November 6, 2014 letter (November 7, 2014 - February 7, 2015) expired prior to commencement of this appeal.  Petitioner’s challenge to those bans, therefore, is moot (Appeal of Roth, 55 Ed Dept Rep, Decision No. 16,872).  The record also indicates that, on July 13, 2015, a temporary order of protection was issued prohibiting petitioner from being within 100 yards of respondent’s superintendent of schools.  Even if I were to overturn respondent’s March 11, 2015 action prohibiting petitioner’s attendance at its board meetings through June 30, 2016, insofar as respondent’s superintendent is present at respondent’s board meetings, the record indicates that the court-issued order of protection is still in effect, and I have no authority to review or annul a court order (see e.g., Appeal of Roth, 55 Ed Dept Rep, Decision No. 16,872; Appeal of Forrest, 55 id., Decision No. 16,842).

Petitioner’s appeal must also be dismissed 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).  Petitioner was notified by letters dated September 18, 2014, November 6, 2014, and March 11, 2015 of the periods during which respondent restricted his access to school district property and prohibited his attendance at board meetings.  This appeal was not commenced until March 2016.  As I noted in my prior decision, with respect to respondent’s last notice, dated March 11, 2015, petitioner’s claims would have been timely brought if the appeal was commenced by April 15, 2015 (Appeal of Roth, 55 Ed Dept Rep, Decision No. 16,872).  The instant appeal, however, was not initiated until March 2016.  Petitioner has not set forth good cause, or any cause, for the eleven-month delay in commencing the instant appeal.  Therefore, the appeal is also untimely, warranting dismissal.

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