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Decision No. 17,359

* Subsequent History: Matter of Lujan v Elia; Supreme Court, Albany County (McGrath, J.); Judgment dismissed petition to review; January 16, 2019. *

Appeal of R.L. from action of Carmen Fariña, Chancellor of the New York City Department of Education, regarding denial of access to school property.

Decision No. 17,359

(March 26, 2018)

Morningside Heights Legal Services, Inc., attorneys for petitioner, Philip M. Genty, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Agnetha E. Jacob, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the determination of Carmen Fariña, Chancellor of the New York City Department of Education (“NYCDOE”), prohibiting him from accessing P.S. 151 Yorkville Community School property.  The appeal must be dismissed.

At the time the appeal was commenced, petitioner’s child (“the student”) was a student at P.S. 151 Yorkville Community School (“YCS”) in the City School District of the City of New York.  By letter dated November 20, 2015, Samantha Kaplan, the principal of YCS, notified petitioner that he would no longer be allowed to enter the building or come within 1,000 feet of school grounds at any time.  The letter further indicated that, if petitioner needed to pick up the student in cases of emergency, he should contact the school prior to arrival and arrangements would be made for a safe pickup.  Principal Kaplan’s stated basis for the restrictions placed on petitioner’s access to YCS property was that he was listed as a Level 3 registered sex offender or had committed a sexual offense involving victims under the age of 18, pursuant to the New York State Sex Offender Registration Act.

By letter dated April 12, 2016, petitioner’s counsel wrote to NYCDOE’s counsel to respond to the restrictions placed on him by the principal of YCS and request entry to school grounds.  By letter dated May 3, 2016, counsel for NYCDOE responded, indicating that NYCDOE upheld the restrictions imposed by the principal.  This appeal ensued.

Petitioner argues that the restrictions imposed by the principal, and upheld by NYCDOE, are based solely on a 1988 felony conviction and are no longer applicable as he is no longer under parole supervision.  Petitioner further asserts that New York State law and policy explicitly require that he be permitted onto school grounds.  Petitioner seeks reversal of respondent’s determination so that he may freely access YCS property.

Respondent contends that the appeal is untimely and that petitioner fails to state a claim upon which relief may be granted.  Respondent further maintains that the restrictions imposed on petitioner are entirely reasonable, rationally related to its significant interest in ensuring the safety of the school’s students and are neither arbitrary nor capricious.

I must first address the procedural issues.  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.

By letter dated April 24, 2017, respondent objects to a letter dated April 5, 2017 submitted by petitioner to “provide an update to the material facts in this matter.”  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Petitioner did not make an application pursuant to 8 NYCRR §276.5 to submit the April 5, 2017 letter and, therefore, I have not considered it.

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 argues that the 30-day period runs from the date of his receipt of NYCDOE’s denial of his request for access to school property.  Respondent contends that petitioner’s appeal is untimely as the appeal was commenced more than 30 days after petitioner’s receipt of the principal’s letter in November 2015 and that the subsequent denial by NYCDOE was a response to petitioner’s request for reconsideration, which does not extend the statute of limitations period.

While I agree with respondent that a request for reconsideration does not toll the timeframe in which an appeal to the Commissioner must be brought, I disagree with respondent’s characterization of petitioner’s April 2016 letter as a request for reconsideration.  Appeal of K.M. (55 Ed Dept Rep, Decision No. 16,796), upon which respondent relies, is distinguishable on its facts.  In that case, the final determination of which petitioner was found to have requested reconsideration was communicated to petitioner by the school district’s counsel.  Here, although not entirely clear, petitioner’s April 2016 letter appears to be an appeal to respondent of the principal’s November 2015 letter and/or a request that respondent, as the school district, issue a determination regarding petitioner’s demand for access to YCS in light of its district-wide policies (see e.g. Appeal of L.M., 47 Ed Dept Rep 23, Decision No. 15,609; Appeal of E.L., 36 id. 130, Decision No. 13,679).  As a result, under the circumstances presented here, I find that the time for petitioner to commence the appeal runs from NYCDOE’s denial of petitioner’s demand in May 2016 and I therefore decline to dismiss the appeal as untimely.

Nevertheless, the appeal 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).

As relief, petitioner seeks access to YCS property, “to pickup and drop off [the student] and to attend [the student’s] school events.”  As set forth in an affidavit from Jennifer Rehn, principal of J.H.S. 167 Robert F. Wagner, sworn to on February 8, 2018, the student is now attending J.H.S. 167 Robert F. Wagner.  Therefore, petitioner’s challenge to respondent’s May 3, 2016 determination to deny his request to access YCS property is moot because the student is no longer a student at YCS.

Although I am constrained to dismiss the appeal for the reasons described above, I am compelled to comment on respondent’s decision to ban petitioner from school property.  Penal Law §65.10(4-a) imposes as a mandatory condition of a sentence of probation or conditional discharge for certain specified sex offenses, including conviction of offenses under Article 130 of the Penal Law, that the individual refrain from knowingly entering school grounds, except under certain specified conditions.  Petitioner was convicted of the crime set forth in Penal Law §130.35, which is part of Article 130.  The record indicates that petitioner’s probation ended over a decade ago and, while I note that, as a Level 3 sex offender, petitioner is subject to lifetime registration requirements under Article 6-C of the Corrections Law, the Sex Offender Registration Act, the prohibition in Penal Law §65.10(4-a) would no longer apply once the period of probation or conditional discharge has ended.  I urge respondent and its counsel to review the provisions of Penal Law §65.10(4-a) concerning the circumstances under which sex offenders are prohibited and can be prohibited from entering into or upon school grounds, as that term is defined in Penal Law §220.00(14)(a) (see Appeal of K.M., 55 Ed Dept Rep, Decision No. 16,796).

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