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Decision No. 17,360

Appeal of APRIL TROJAHN from action of the Board of Education of the Tri-Valley Central School District regarding a personnel action.

Decision No. 17,360

(March 26, 2018)

Whiteman Osterman & Hanna LLP, attorneys for respondent, Robert T. Schofield and Vitaliy Volpov, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals from action of the Board of Education of the Tri-Valley Central School District (“respondent”) regarding respondent’s failure to renew her contract as a cheerleading coach.  The appeal must be dismissed.

According to the record, petitioner was hired by respondent as one of two varsity basketball cheerleading coaches in November 2014.  Petitioner served in this position for the 2014-2015 winter cheerleading season.  On March 20, 2015, Derek Adams, respondent’s director of health, physical education and athletics (“director” or “Adams”) conducted a year-end evaluation of petitioner.  During this evaluation, the director identified several concerns with petitioner’s performance and indicated to her that her contract would not be renewed for the following season.  According to the record, respondent appointed a new coach to replace petitioner on August 5, 2015.  This appeal ensued.

Petitioner contends that, during her employment with respondent’s district, she “witnessed the violation of human rights in regards to the cheerleaders” and indicates that district officials, including the director, “tried to cover up” such incidents.  Petitioner also asserts that she was fired because she stood up for “students’ rights as well as her own.”  Petitioner also levels several accusations against the director, alleging that he impeded her ability to enforce a cheerleading agreement between her and the cheerleaders, that he committed “character assassination” and that he mistreated the varsity male basketball coach during the 2014-2015 sports season.  For relief, petitioner requests: (1) the “immediate removal” of several individuals affiliated with the district, including the director; (2) removal of the March 20, 2015 evaluation “from the petitioner’s file”; (3) placement of a “report” in the director’s file which states that “he tried to cover incidents and wrongfully fire[d] the petitioner ... ”; and (4) money damages for “the crimes of slander,” harm to future employment prospects and reimbursement for legal expenses.

Respondent contends that the appeal must be dismissed as untimely, for lack of proper verification and for failing to present a clear and concise statement of petitioner’s claims.  Additionally, to the extent petitioner seeks removal of certain district employees pursuant to Education Law §306, respondent argues that these employees did not receive the notice required by 8 NYCRR §277.1(b), warranting dismissal of the removal application as against them.  Respondent requests that the appeal be dismissed in its entirety.

In the petition, petitioner seeks removal of four individuals: Derek Adams, Christine Bellacio, Robert Peters and Thomas Palmer.  While Adams served as respondent’s director of health, physical education and athletics, the petition does not specify the positions held by the other three individuals, merely identifying Bellacio, Peters and Palmer as “Tri-Valley administration.” Respondent denies petitioner’s allegations in this regard but provides no clarification about the positions held by these individuals.  Christine Bellacio is identified in documents attached to the petition as a district staff member and the parent of a student on the cheerleading squad.  I have previously held that an athletic director, such as Derek Adams, is a school district employee and not a school officer subject to removal by the Commissioner pursuant to Education Law §306 (Application of Passer, 57 Ed Dept Rep, Decision No. 17,274).  Thus, the application must be denied as to Adams.

Additionally, I am unable to determine from the record whether Bellacio, Peters and Palmer are school officers or school district employees.  Education Law §306 only authorizes the Commissioner to remove school officers under appropriate circumstances.  For purposes of Education Law §306, “school officers” include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or “other school officer[s].”  I lack jurisdiction to remove a school district employee who is not a school officer as so defined (Application of Passer, 57 Ed Dept Rep, Decision No. 17,274; Appeal of Gonzalez, 48 id. 415, Decision No. 15,900; Appeal of Ferguson, 32 id. 494, Decision No. 12,897).  Thus, to the extent petitioner seeks to remove Bellacio, Peters and Palmer pursuant to Education Law §306, she has failed to establish that any of the above individuals are school officers subject to removal.  As such, the application must be denied on this basis.

Additionally, petitioner’s application seeking removal of the four individuals identified above must be dismissed for failure to join them as necessary parties.  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).

The affidavit of service filed with the petition indicates that the petition was served on a member of the board of education, which would constitute proper service upon the school district pursuant to 8 NYCRR §275.8(a).  However, none of the individuals whose removal is sought are named in the caption as respondents nor is there any evidence that they were personally served with a copy of the petition.  Those individuals’ rights would clearly be adversely affected by removal from their positions, and to the extent the petition seeks their removal, the application must also be dismissed for failure to join them as necessary parties (see e.g. Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,245; Appeal of Nelson, 55 id., Decision No. 16,845).

Even if petitioner had established that Adams, Bellacio, Peters and Palmer were school officers subject to my jurisdiction under Education Law §306, the defective notice of petition would warrant denial of the application.  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under 8 NCYRR §275.11(a) for appeals brought pursuant to Education Law §310.  Additionally, petitioner did not name any individual respondent in the caption of the notice.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Application of Carrion, 50 id. 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 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253; Application of Knapp, 41 id. 41, Decision No. 14,608).

Petitioner’s remaining claims must be dismissed as outside the jurisdiction of an appeal pursuant to Education Law §310 or as untimely.  Petitioner’s request for $110,000 in compensation for “slander,” the “cost ... on future employment in the field of cheerleading” and “law expenses” must be dismissed for lack of jurisdiction.  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).  Further, I lack jurisdiction over petitioner’s slander claims, which may be raised in a court of competent jurisdiction (Appeal of P.S., 49 Ed Dept Rep 61, Decision No. 15,958; Appeal of Federico, 35 id. 269, Decision No. 13,538).

Petitioner’s request to “have a report permanently filed” in the record of the director must also be dismissed for lack of jurisdiction.  Although Education Law §310 confers broad authority upon the Commissioner to review any official act or decision of local school authorities, including matters relating to the discipline of school personnel, the Commissioner lacks jurisdiction to impose discipline on district employees, which includes the placement of letters of reprimand in an employee’s file (see e.g. Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,236; Matter of Richardson, 24 id. 104, Decision No. 11,333, Raymond et al. v. Ambach; Supreme Court, Albany County, Special Term; Cholakis, J.; judgment granted dismissing petition to review; May 23, 1985; n.o.r.).  Such employee discipline is within respondent’s exclusive jurisdiction and generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts (see Education Law §§1709(16) and (33), 3020, 3020-a; Civil Service Law §75).

Petitioner’s request that respondent remove the March 20, 2015 evaluation from her personnel file must be dismissed as 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). 

Petitioner originally served a petition which was served on respondent on December 11, 2015, and which was received by my Office of Counsel on December 17, 2015.  In a letter dated December 18, 2015, my Office of Counsel returned petitioner’s submission for lack of verification.  Petitioner was informed that if she served a corrected petition within two weeks of December 18, 2015 (i.e., January 1, 2016), the appeal would be deemed to have been initiated on the day a copy of the petition was originally served on respondent.  Although petitioner partially complied with this instruction insofar as she served a petition on December 30, 2015, the record reflects that this version of the petition materially differed from the version which petitioner served on respondent on December 11, 2015.  Therefore, petitioner’s service of a materially different petition on December 30, 2015 does not relate back to the original date of service, and the petition shall be deemed served on December 30, 2015.

Here, any claim regarding the March 20, 2015 year-end evaluation accrued on March 20, 2015 when petitioner met with the director and signed a copy of the evaluation.  Therefore, petitioner’s service of the instant petition on December 30, 2015 – over eight months after the date of the meeting – is untimely.  Petitioner does not set forth good cause for this delay in her petition as required by 8 NYCRR §275.16.

In her reply, petitioner argues that the petition is timely, explaining that she commenced the instant appeal “as a result of [respondent’s] deciding to defend” itself against a complaint which petitioner filed with the New York State Division of Human Rights (“DHR”).  According to the record, petitioner filed a complaint with DHR on or about October 27, 2015, and respondent filed a response to this complaint on November 11, 2015.  I find no basis in the record to conclude that the claims raised by petitioner herein accrued on November 11, 2015.  Although petitioner explains that respondent’s decision to respond to her claims motivated her filing of the instant appeal, petitioner’s motivation is not relevant to a determination of the timeliness of her claims.  Moreover, even assuming, arguendo, that petitioner’s claims accrued on November 11, 2015, the instant petition was filed on December 30, 2015, more than 30 days thereafter, and petitioner has not set forth good cause for this delay.  Therefore, petitioner’s challenge to the March 20, 2015 year-end evaluation must be dismissed as untimely.

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