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Decision No. 17,051

Appeal of DEBORAH LEIGH ZWANKA, from action of the Board of Education of the East Greenbush Central School District, Angela Nagel, Lawrence Edson, Michele Bowman and James McHugh, regarding substitute teaching services.

Decision No. 17,051

(February 27, 2017)

Ferrara Fiorenza, P.C., attorneys for respondents, Henry F. Sobota, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges various actions of the Board of Education of East Greenbush Central School District (“respondent board”) and respondents Angela Nagel, former superintendent of schools; Lawrence Edson, acting superintendent of schools; Michele Bowman, assistant superintendent; and James McHugh, principal of Bell Top Elementary School (“Bell Top”), arising out of her removal from the district’s per diem substitute teaching lists.  The appeal must be dismissed.

Petitioner began volunteering at Bell Top in 2009 and subsequently served as a per diem substitute teacher until the 2014-2015 school year.  The petition and attached materials contain more than 80 pages of narrative, police reports, as well as emails with petitioner’s handwritten comments added thereto, detailing a difficult relationship between petitioner and members of district staff spanning several years.

The petition is rambling and unclear, but the gravamen of petitioner’s appeal appears to be her claim that her removal from the district’s per diem substitute teaching list was not based on any incidents or facts, but rather was the product of defamation, slander, bullying, libel and willful neglect of duty by the various respondents.  Petitioner alleges that respondent McHugh removed her from the substitute list for Bell Top on October 1, 2013 and again on October 1, 2014 based on a complaint from a community member and that respondent Bowman placed her name back on the list on October 2, 2014, but allegedly had teachers opt to exclude her through the district’s new Questar Subfinder system.  It appears from the record that in a letter dated February 3, 2015, respondent Edson advised petitioner that her name remained on the district’s substitute list.  While respondents assert in their memorandum that petitioner was notified in June 2015 that she had been removed from the district’s substitute list for the 2015-2016 school year, they have submitted no evidence in the record to support that assertion, though petitioner alleges that respondent Bowman has had her name removed from the district’s substitute list at an unspecified date.  This appeal ensued.

Petitioner contends that she was improperly removed from the district’s substitute list and that, as a result, her reputation has suffered harm and her children have been negatively impacted.  Petitioner’s primary request for relief is to be reinstated to the substitute list.  Petitioner also requests various other forms of relief including a declaration that she is a certified teacher of outstanding reputation and that there was never any reason for removing her from the district’s substitute list; that various members of district staff be held accountable for their neglect of duty, bullying, slander, libel, defamation of character and willful neglect; a written statement to all staff involved explaining the willful intent of various staff members to commit character assassination and remove petitioner’s name from the substitute list; a public apology from various district staff members for the ongoing slander, libel and defamation, bullying, and character assassination; an apology from respondent board for not assisting with petitioner’s complaints; that a statement be made to respondent McHugh that petitioner’s children will not be harassed in the future; a waiver of the athletic transfer rule for petitioner’s children should petitioner choose to move her children from the district’s schools; and that action be taken to hold various staff members and respondent board responsible for bullying petitioner.

Respondents contend that their actions were, in all respects, proper.  Respondents contend that petitioner’s appeal is untimely and fails to state a claim upon which relief may be granted.  Respondents also argue that petitioner failed to serve named parties and failed to join necessary parties.

I will first address the procedural issues.  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).  The record indicates that petitioner failed to properly serve each named respondent.  In addition to respondent board, petitioner names Angela Nagel, Lawrence Edson, Michele Bowman and James McHugh as parties to the instant appeal.  However, petitioner only provides an affidavit of service for service upon a secretary in the superintendent’s office, and has not demonstrated that the secretary was authorized to accept service upon any of the named individual respondents.  There is no indication in the record that petitioner attempted to personally serve Nagel, Edson, Bowman or McHugh.  Additionally, petitioner has failed to demonstrate that she made any diligent attempt to serve those individuals personally before attempting to serve the district on their behalf.  Therefore, service upon the individuals named was not made in compliance with the requirements of Commissioner’s regulation §275.8(a) and, thus, is improper as to all four of them (Appeal of Houdek, 47 Ed Dept Rep 415, Decision No. 15,740; Appeal of Donnelly, 33 id. 362, Decision No. 13,079).  Accordingly, the appeal must be dismissed as to Nagel, Edson, Bowman and McHugh for failure to properly effect service upon each of them.

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).  As part of the relief requested, petitioner seeks a waiver of the athletic transfer rule should she choose to move her children from the district’s schools.  Such relief, if granted, would be granted in accordance with the rules, policies and practices of the New York State Public High School Athletic Association (“NYSPHSAA”).  Therefore, to the extent that petitioner makes claims in this regard, they must be dismissed for failure to join NYSPHSAA as a necessary party.

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 various specific acts of which petitioner complains occurred between October 1, 2013 and October 30, 2015, but the petition was not served until July 6, 2016, many months later.  The only reasons petitioner offers for her delay are the appointment of a new district superintendent and personal reasons.  Under these circumstances, I find no basis to excuse petitioner’s lengthy delay in commencing this appeal.  Accordingly, the appeal must be dismissed as untimely, insofar as petitioner challenges such specific actions in the petition.

However, to the extent petitioner challenges respondents’ action of excluding petitioner from the district-wide substitute list, I decline to dismiss such claim as untimely on this record.  It appears from the record that sometime after February 2015, petitioner was excluded from the district-wide substitute list, but there is no proof of when respondents took such action.  Respondents have failed to prove that a determination was made to remove petitioner from the district-wide substitute list at a specific point in time for stated reasons and that petitioner was duly notified of that determination.  Absent such proof, I have no basis for determining when petitioner’s time to appeal commenced.  Among petitioner’s allegations are that she has been removed from the district-wide substitute list in the past, and later restored, all without notice.  Under such circumstances, I decline to dismiss petitioner’s challenge to her exclusion from the district-wide substitute list as untimely.

To the extent petitioner raises claims that do not arise under Education Law, such as slander, libel, and defamation of character, I lack jurisdiction over such claims, which may be raised in a court of competent jurisdiction (Appeal of Murray, 56 Ed Dept Rep, Decision No. 17,002; Appeal of P.S., 49 id. 61, Decision No. 15,958; Appeal of Federico, 35 id. 269, Decision No. 13,538).

To the extent petitioner claims that respondents violated the Freedom of Information Law (“FOIL”), such claims must also be dismissed for lack of subject matter jurisdiction.  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations 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 Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

To the extent that petitioner seeks an apology, the Commissioner lacks the authority to order the board of education or any school district employee to issue an apology (Appeal of L.D., 55 Ed Dept Rep, Decision No. 16,864; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773; Application of McDougall and Dacey, 42 id. 195, Decision No. 14,819).

The remaining portion of petitioner’s appeal that is not dismissed on procedural grounds is 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).  A board of education has an unfettered right to terminate the employment of an untenured substitute or probationary teacher for any reason unless the employee establishes that she was terminated for a constitutionally impermissible reason or in violation of a statutory or contractual provision (James v. Bd. Of Educ., 37 NY2d 891; Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776).  Petitioner has neither alleged nor established that respondents acted for a constitutionally impermissible reason or in violation of a statutory or contractual proscription.  On the record before me, petitioner has not met her burden of proof in this regard and the appeal must therefore be dismissed.

I have considered petitioner’s remaining contentions and find them to be without merit.