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Decision No. 17,355

Appeal of REV. KEVIN T. WILLIAMS, on behalf of students and parents, from action of the Board of Education of the Victor Central School District and Superintendent Dawn Santiago-Marullo regarding a student publication.

Decision No. 17,355

(March 20, 2018)

Ferrara Fiorenza PC, attorneys for respondents, Catherine E.M. Muskin and Joseph G. Shields, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals actions of the Board of Education of the Victor Central School District (“respondent board”) and Superintendent Dawn Santiago-Marullo (“respondent superintendent”) (collectively “respondents”) taken in response to a student publication.  The appeal must be dismissed.

According to the record, during the 2016-2017 school year, a group of students attending Victor Senior High School created and published a book containing approximately 300 Haiku for online purchase from  Although the book has not been submitted by either of the parties, one of the documents submitted with the petition appears to contain one of the Haiku at issue. The record indicates that, sometime in April 2017, both respondent superintendent and the principal of Victor Senior High School were made aware of the Haiku.  It appears from the record that the content of the Haiku was considered by respondents to be offensive and inappropriate and also named several individual students.  An investigation was conducted and, according to respondents, the students who authored the Haiku were disciplined.

Subsequently, the matter was reported in the press and, on May 25, 2017, the district issued a press release regarding the incident and the district’s response.  According to petitioner, several additional actions were called for by the community, including an apology by the district, creation of an ombud position and provision of diversity training (“action steps”).  This appeal ensued.

Petitioner brings this appeal on behalf of students and parents who, he alleges, have been affected by the Haiku and by respondents’ response to the situation.  Petitioner contends that respondents failed to adequately address the incident.  Petitioner claims, among other things, that respondents: failed to discipline the responsible students; failed to communicate sufficiently with members of the community about the incident; “downplayed” the severity of the matter; failed to address violations of the district codes of conduct; failed to file any “state violation of code”; and failed to apologize to the families of affected students.

As relief, petitioner demands revocation of respondent superintendent’s license and State oversight of the action steps presented to the district by the community.

Respondents contend that petitioner lacks standing to maintain the appeal.  Respondents also assert that the appeal is untimely, lacks verification, requests relief that is not within the jurisdiction of the Commissioner, and fails to assert a clear and concise statement entitling petitioner to relief.  Respondents assert that their actions were in all respects proper.  To the extent that petitioner seeks respondent superintendent’s removal, respondents assert that the petition lacks the required notice, was not properly served, and fails to establish any basis for such removal.

I must first address several procedural matters.  On or about October 2, 2017, it appears that petitioner served a reply upon respondents.  Although no affidavit of service was submitted, the reply is dated October 2, 2017 and respondents admit receiving it on that date.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Respondents served their verified answer upon petitioner by mail on August 21, 2017.  Therefore, petitioner was required to serve his reply no later than September 4, 2017.  Petitioner did not serve his reply until October 2, 2017 and provides no explanation for the delay.  As a result, the reply is untimely and I will not consider it.  Moreover, the reply was not verified, as required.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  Since the reply was not verified, I have additionally not considered it for that reason.

The appeal must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Although petitioner states that “[s]everal students and faculty have been impacted” by respondents’ alleged inaction, he alleges no personal injury to his or his children’s rights due to the publication of the Haiku or the district’s response.  Therefore, he lacks standing to maintain the appeal. 

To the extent that petitioner attempts to bring this appeal on behalf of a class of students, parents and citizens, he may not do so.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Other than stating in the caption that the appeal is brought “on behalf of the Students and affected parents” (sic) and stating in the petition that he “is writing on behalf of all students” in the district, petitioner has failed to set forth the number of students and parents in the class he purports to represent, nor has he established that all questions of fact and law are common to the class.  Therefore, class status is denied. 

The petition must also be dismissed for lack of verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  Although petitioner’s signature is notarized on the last page, the mere notarization of a signature does not constitute verification of a pleading (see Appeal of C.S., 46 Ed Dept Rep 260, Decision No. 15,501).  Therefore, the petition is not properly verified and the appeal must be dismissed.

Petitioner’s appeal is also 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).  According to the record, petitioner became aware of the existence of the Haiku in April 2017.  The petition also includes an email dated May 25, 2017 from petitioner to the district protesting the administration’s alleged inaction in response to the Haiku.  Therefore, as of May 25, 2017, petitioner was aware of and, in fact, had complained about respondent’s response to the publication of the Haiku.  However, petitioner did not commence this appeal until July 31, 2017, beyond the 30-day time period.  Consequently, the appeal must be dismissed as untimely.

It is unclear on the face of the petition whether petitioner seeks, in this proceeding, respondent superintendent’s removal from office.  Petitioner references and attaches what appears to be an electronic petition from community members calling for the superintendent’s removal.  However, it appears to be directed to the board of education.  Had petitioner intended to seek removal of respondent superintendent in this proceeding, I note that he failed to include notice required by §277.1(b) of the Commissioner’s regulations. Section 277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office.  In this case, petitioner failed to comply with §277.1(b) but, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent (Application of Carrion, 50 Ed Dept Rep, Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253). 

Petitioner also failed to serve respondent superintendent with the notice of petition and petition.  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).  Although the affidavit of service filed by petitioner indicates that the district clerk was served with the notice of petition and petition, there is no evidence that respondent superintendent was personally served.  Therefore, any application for her removal would have been denied.

Next, as relief, petitioner seeks “State oversight” of the action steps presented by the community to the district, apparently to ensure that respondents complete them.  However, the Commissioner of Education lacks jurisdiction to appoint an overseer to substitute his or her opinion or determination for that of a board of education (see Verbanic v. Nyquist, 41 AD2d 466).  A properly initiated appeal that complies with Commissioner’s regulations is the appropriate recourse to seek review of a board of education’s actions or determinations.

As further relief, petitioner seeks revocation of respondent superintendent’s New York State “Licensure.”  An appeal pursuant to Education Law §310 is not the appropriate forum in which to seek the revocation of a superintendent’s certification.  Such relief may only be obtained through the process set forth in Part 83 of the Commissioner’s regulations (8 NYCRR Part 83).

Although I am constrained to dismiss the appeal on procedural grounds, this decision should not be construed as condoning the students’ conduct in publishing the Haiku.  Respondents are reminded to ensure adequate communication with the community, to the extent appropriate, with respect to actions taken to promote a safe, respectful environment for students and staff in the district in accordance with all applicable laws, regulation, and policies, including but not limited to those related to the Dignity for All Students Act (Education Law, Article 2).

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