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Decision No. 17,246

Appeal of B.H. from action of the Board of Education of the City School District of the City of Ithaca regarding an incident with a student.

Decision No. 17,246

(November 2, 2017)

Kate I. Reid, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the Board of Education of the City School District of the City of Ithaca’s (“respondent”) response to an alleged assault upon her by a student.  The appeal must be dismissed.

At its August 9, 2016 board meeting, petitioner was appointed by respondent as an alternate instructor, on an as needed basis, to provide one-to-one instruction to students who are unable to attend school. 

On December 21, 2016, while petitioner was tutoring one of her assigned students at the public library, the student allegedly assaulted petitioner.  Petitioner asserts that she submitted an incident report to her supervisor, but did not receive a response. On January 25, 2017, petitioner met with respondent’s deputy superintendent.  Apparently unsatisfied with the outcome of the meeting, petitioner wrote to the board to provide “a detailed account” of “events that transpired before, during and after the assault.”  Petitioner requested a written response “stating what action the board intends to take to provide relief.”  By email dated May 23, 2017, the deputy superintendent informed petitioner that in response to her letter the district will: advise teachers to provide instructional materials for students; provide training to alternative instructors on supporting students’ diverse learning needs, and identify a specific district administrator as a point-of-contact for all alternative instructors.  This appeal ensued.

Although the petition is not entirely clear, it appears that petitioner is asserting that the district failed to adequately respond to a workplace injury and that because of her injury, stopped assigning her students to tutor.  Specifically, petitioner alleges that respondent did not respond to her request for relief or request for improvement to health and safety practices and incident response at the district. 

Petitioner requests a full investigation of the behavior of the district, compensation for lost wages, and improvements in health and safety training and incident response at the district.

Respondent argues that the appeal should be dismissed for improper service and failure to state a claim.  Respondent also argues that the Commissioner lacks jurisdiction on some, or all, of the claims and that some, or all, of the claims are barred by the New York State Worker’s Compensation Law.

I will first address the procedural matters.  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.

The appeal must be dismissed for improper 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).

Respondent asserts that petitioner did not personally serve anyone authorized to accept service.  As proof of service of the petition upon respondent, petitioner submits an affidavit of service indicating that the petition was served on June 26, 2017 by “delivering to and leaving with said District Clerk....”  However, respondent submits an affidavit from its district clerk which indicates that she was out of the country on the date that petitioner asserts service occurred.  The district clerk also attached a copy of her travel itinerary which verifies that she was out of the country on such date.  She further asserts that when she returned from her trip, she learned that the school attorney found the petition in the school district mailbox on June 28, 2017.  The district clerk asserts that she was never personally served with the petition.  In her reply, petitioner states that she acted in good faith by having a friend serve the district clerk and asserts that “personal delivery to her office” was made.  Since petitioner has failed to refute respondent’s evidence that the district clerk was out of the country and was not personally served, the appeal must be dismissed.  

Even if the appeal were not dismissed for improper service, I note that I would be unable to grant any of the relief sought by petitioner herein.  With respect to petitioner’s request for an investigation and compensation for alleged lost wages, 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).  Also, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

Finally, with respect to petitioner’s request that respondent improve its health and safety training and incident response, I note that 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).  On this record, petitioner has not demonstrated a legal right to the requested relief,[1]  and such claim must be dismissed.




[1] The record also reflects that respondent agreed to alter its procedures with respect to alternate instructors, including reviewing its hiring and vetting process; giving more robust training; instituting a new supervisory structure and conducting exit interviews.