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Decision No. 17,433

Appeal of MARK BRATGE from action of the Board of Education of the City School District of the City of Rome, Principal Tracey O’Rourke, Superintendent Jeffrey Simons, and Director of Employee Relations Frank Conestabile, regarding denial of access to district property.

Decision No. 17,433

(July 5, 2018)

Ferrara Fiorenza, PC, attorneys for respondent, Henry F. Sobota, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges action of the Board of Education of the City School District of the City of Rome (“respondent board”), Middle School Principal Tracey O’Rourke (“respondent O’Rourke”), Superintendent Jeffrey Simons (“respondent Simons”), and Director of Employee Relations Frank Conestabile (“respondent Conestabile”) (collectively “respondents”) prohibiting him from accessing school property.  The appeal must be dismissed.

Petitioner is a tenured teacher employed by respondent’s district.  According to petitioner, on or about November 18, 2015, he received a phone call from respondent O’Rourke notifying him that he was being placed on paid administrative leave pending an investigation into a student complaint regarding inappropriate conduct.  In a letter to petitioner dated November 19, 2015, respondent O’Rourke confirmed that petitioner had been placed on paid administrative leave pending a district investigation into the allegations.[1]  The letter further stated that, while on administrative leave, petitioner could not enter into any district buildings or onto district property without express permission of respondent O’Rourke.  According to the record, while on administrative leave, petitioner requested access to district property on various dates.  Respondents indicate that each of these requests was granted when an administrator was available to supervise petitioner and when students would not be present.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 5, 2016.

Petitioner argues that, absent disciplinary charges against him, the total ban from all district property and events placed on him by respondents is unreasonable and overly broad.  Petitioner further argues that the order of protection imposed by the criminal court limits contact with the student complainant and, as petitioner has abided by the restrictions since their imposition, he does not pose a risk to district students, staff or property.  Petitioner seeks withdrawal of the November 2015 restrictions on his access to district property and requests that such access be limited to the extent of an order of protection issued by a court in a criminal proceeding based upon the conduct giving rise to the instant appeal.  Petitioner further requests access to his classroom without direct supervision, which he argues is necessary to facilitate the relocation of his classroom as a result of a district building project.

Respondents contend that the petition must be dismissed as untimely.  Respondents further contend that its actions were proper in all respects and that petitioner has failed to state a claim upon which relief may be granted.

I must first address a procedural matter.  Petitioner submitted a reply in this matter.  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 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).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). 

Petitioner was notified of his restricted access to school district property by letter dated November 19, 2015.  This appeal was not commenced until June 23, 2016.  Affording petitioner five days for mailing from the date of such letter, petitioner’s appeal is over five months late.  Petitioner does not, as required, set forth good cause in the petition for the delay (see 8 NYCRR §275.16).  Therefore, the appeal is untimely, warranting dismissal.

The appeal must also 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).  According to information submitted by respondents, which I have accepted pursuant to 8 NYCRR §276.5, petitioner was removed from administrative leave following the conclusion of petitioner’s criminal case.  According to an affidavit from respondent Conestabile, on or about September 16, 2016, petitioner was notified that he was reinstated to an alternative assignment[2] and that he was no longer required to obtain permission to enter district property or attend district functions.[3]  Indeed, in a separate proceeding pursuant to General Municipal Law §50-h, petitioner characterized the instant petition as a challenge to respondents’ “ban on property” which became “a moot point” once he was “found innocent” in the criminal proceeding.  The relief requested in the petition is a “declaration that this ban is withdrawn” with access limited only by the order of protection, and reinstatement of petitioner’s ability to access his classroom and district property without supervision.  As the record indicates that the subject restrictions are no longer in place, no meaningful relief can be granted and petitioner’s challenge to them is, therefore, moot.

To the extent petitioner nevertheless seeks an advisory opinion, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of OS and DS, 50 id., Decision No. 16,201; Appeal of a Student with a Disability, 48 id., Decision No. 15,899 Appeal of Martin, 31 id. 441, Decision No. 12,692).

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




[1] I note that a criminal case was pending at the time of filing of this appeal and that an order of protection was issued in that matter requiring the petitioner to stay away from the student complainant. 


[2] The record indicates that petitioner requested to be placed on a special assignment for the 2016-2017 school year.  By memorandum of agreement dated September 14, 2016, the Rome Teachers Association, on petitioner’s behalf, and the superintendent agreed to place petitioner on special assignment until June 30, 2017.


[3] By letter dated January 23, 2017, petitioner requests that respondents’ submission “only be considered in part due to inaccuracies and disingenuous assertions....”  Petitioner does not, however, object to this statement in respondent Conestabile’s affidavit and the record contains no evidence that the ban has been reinstated.