Appeal of D.C., on behalf of her son A.C., from action of the Board of Education of the Tuckahoe Union Free School District regarding student discipline, and application for the removal of Barbara Nuzzi as Superintendent of the Tuckahoe Union Free School District.

Decision No. 17,245

(November 2, 2017)

Forde & Associates, attorneys for petitioner, James L. Forde, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondents, Erin M. Rose-Morris, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a decision made by staff of the Tuckahoe Union Free School District (“district”), overseen by the Board of Education (“respondent board”), which imposed an athletic suspension on her son (“the student”), and petitioner also seeks the removal of Barbara Nuzzi (“respondent Nuzzi”) (collectively “respondents”) from her position as superintendent of the district.  The appeal must be dismissed and the application must be denied.

At all times relevant to this proceeding, the student was a junior in respondent’s high school.  On October 17, respondent Nuzzi became aware that the student may have sent a “tweet” using the social media application Twitter.  The tweet stated: “Your [sic] such a waste to this community.  NOT ONE PERSON HERE LIKES YOU.”  The student met with the school’s athletic director and principal on the morning of October 18 and admitted that he sent the tweet.  Respondent’s athletic director told the student that he would be suspended for a single athletic game on October 19. 

Later in the afternoon of October 18, the student’s uncle, a person in parental relation to the student, met with the principal and superintendent to discuss the student’s athletic suspension.[1]  According to the record, the student’s uncle raised his voice to the superintendent and pointed his finger at her.  A school security officer subsequently escorted the student’s uncle out of the building.

The student served his one-day athletic suspension on October 19.  This appeal ensued.

Petitioner raises several objections to the manner in which the one-day athletic suspension was imposed.  Specifically, petitioner argues that the superintendent failed to provide her with a “written response explaining the basis and the process through which the decision was made.”  Petitioner further complains that respondents have not “confirm[ed] the actual grounds upon which the suspension was based” and failed to identify the student’s “accuser.”  Petitioner also contends that she did not receive notice of the student’s one-day suspension until 5:00 p.m. on October 18 and, thus, was not afforded an opportunity to discuss the matter with the athletic director.  Petitioner also contends that the actions of the superintendent and other district employees “clearly constitute harassment” prohibited by the Dignity for All Students Act. 

For remedies, petitioner requests “[f]ull disclosure, in writing” of the basis for the student’s suspension in specific detail (e.g. “a detailed written description of the efforts made to investigate such claims, and the true identity of school officials who made the decision to suspend [the student]”).  Petitioner further seeks expungement of the athletic suspension from the student’s record; an order prohibiting the district from taking further action against the student or retaliating against him based on petitioner’s filing of the instant petition; “admonishment” of respondent Nuzzi “and other school officials”; and removal of respondent Nuzzi from her position as superintendent.

Respondents deny petitioner’s assertions and argue that the appeal must be dismissed for lack of personal service.  Respondents further contend that the appeal is moot to the extent that the student has served his suspension.  Respondents further assert that no relief may be granted regarding petitioner’s request for expungement because the district does not maintain records of athletic suspensions.  Respondents further seek admonishment of petitioner for bringing the instant claim, which it claims is “frivolous.”

Respondents contend that petitioner failed to personally serve the petition on an individual authorized to accept service.  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).

Here, the record indicates that counsel for petitioner personally served the petition on Dorothy Lepore, a teacher within respondent’s district who was “covering for the [d]esk [a]ttendant in the foyer” of respondent’s high school.  Petitioner’s counsel affirms that Ms. Lepore told him she was “authorized to accept the papers.”  Although Ms. Lepore submits an affidavit concerning the manner in which she was served, she does not contest petitioner’s counsel’s assertion that she represented that she was authorized to accept service and would deliver the papers to respondent Nuzzi.  The burden is on respondents to establish their affirmative defense, and on this record, I find that respondents have failed to do so with respect to petitioner’s appeal pursuant to Education Law §310 (see e.g. Appeal of Eschmann, 55 Ed Dept Rep, Decision No. 16,853; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).

However, with respect to petitioner’s application for the removal of respondent Nuzzi pursuant to Education Law §306, I find that petitioner failed to effectuate personal service of the petition.  Commissioner’s regulation §275.8, which is made applicable to removal proceedings by Commissioner’s regulation §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 an 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 the respondent’s residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the commissioner.

While, on this record, counsel for petitioner may have reasonably assumed that Ms. Lepore was authorized to accept service on behalf of the district, the record contains no evidence to support a reasonable basis to assume that Ms. Lepore, or anyone else, had been authorized to accept personal service on the superintendent’s behalf for purposes of a removal application pursuant to Education Law §306.  Moreover, although §275.8(a) of the Commissioner's regulations permits service of a petition on a person of “suitable age and discretion” at the respondent’s residence where the respondent cannot be found, counsel for petitioner does not allege that he engaged in a “diligent search” for the superintendent or that he sought to serve the application at respondent Nuzzi’s residence.  Thus, absent any proof by counsel for petitioner that he indicated to Ms. Lepore that the legal papers contained an application seeking removal of the superintendent, I find that service on Ms. Lepore was defective for purposes of petitioner’s application to remove respondent Nuzzi pursuant to Education Law §306.  Therefore, petitioner’s application must be denied on this basis.

I further take judicial notice of information published on the district’s official website indicating that, on or about December 2015, respondent board hired a new superintendent and that respondent Nuzzi no longer serves in that position.  Therefore, even if petitioner had personally served respondent Nuzzi, the instant application for removal would be denied as moot because respondent Nuzzi no longer serves as the superintendent of the district (Appeal of Affronti, 54 Ed Dept Rep, Decision No. 16,756; Appeal of Gonzalez, 48 id. 415, Decision No. 15,900; Appeal of Gonzalez, 48 id. 405, Decision No. 15,898).

Petitioner submitted a reply in this matter to which respondents object as outside the permissible scope of a reply.  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.

Turning to petitioner’s appeal pursuant to Education Law §310, petitioner’s challenge to the student’s one-day athletic suspension must 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).  Here, the student served the one-day athletic suspension and any claim regarding the appropriateness of the athletic suspension, including the procedures followed by respondents and the penalty imposed, is moot (see e.g. Appeal of Kainz, 38 Ed Dept Rep 339, Decision No. 14,049).[2]

Petitioner’s request for expungement must also be dismissed as moot.  The district, respondent Nuzzi, as well as the high school assistant principal and principal averred that the district does not maintain records of athletic suspensions in students’ permanent records and, specifically, that the student’s record contains no reference to the October 19 athletic suspension.  Therefore, because there is no record of the one-day athletic suspension to expunge, petitioner’s claims must be dismissed as moot (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,022).

To the extent petitioner seeks an order estopping respondents from taking further action of a similar nature against the student, or in retaliation against him for bringing this appeal, petitioner’s claim must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752). 

To the extent petitioner seeks an order publicly sanctioning, censuring or reprimanding respondents for alleged violations of the student’s rights or the Education Law, or for neglect of duty, the appeal must be dismissed for failure to state a claim upon which relief may be granted.  It is well-settled that there is no provision of the Education Law that authorizes the Commissioner to censure or reprimand a board of education, its officers or its employees in an appeal pursuant to Education Law §310 (Appeal of R.E., 56 Ed Dept Rep, Decision No. 17,003; Appeal of M.E.K., 56 id., Decision No. 16,988; Appeal of Formato, 55 id., Decision No. 16,855; Appeal of Coleman, et al., 42 id. 256, Decision  No. 14,845; Appeal of Kozak, 39 id. 278, Decision No. 14,237).

One administrative matter remains.  Respondent Nuzzi requests that I grant her a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify her for legal fees and expenses incurred in defending a proceeding arising out of the exercise of her powers or performance of duties as a school district officer.  It is appropriate to issue such certification unless it is established on the record that the requesting school district officer acted in bad faith (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Application of Mazile, 45 id. 378, Decision No. 15,356).  Here, because the application has been denied on procedural grounds, there has been no finding that respondent Nuzzi acted in bad faith with respect to the allegations in the instant application.  Thus, to the extent such a certificate is necessary, I hereby certify that respondent Nuzzi is entitled to receive the requested certificate (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Application of Wallace, 52 id., Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265).

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE