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Decision No. 17,514

Appeal of V.S., on behalf of her daughter P.S., from action of the Board of Education of the Lakeland Central School District regarding complaints of bullying and discrimination.

Decision No. 17,514

(October 1, 2018)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the actions of the Board of Education of the Lakeland Central School District (“respondent”) regarding its response to allegations that her daughter (“the student”) was subjected to bullying, harassment and discrimination during the 2014-2015 school year in violation of the Dignity for All Students Act (“DASA”; Education Law, Article 2).  The appeal must be dismissed.

Petitioner’s previous appeal regarding petitioner’s claims of bullying, harassment and discrimination during the 2013-2014 school year was dismissed (Appeal of V.S., 58 Ed Dept Rep, Decision No. 17,508).  The facts set forth in that decision are incorporated herein by reference and will not be repeated here at length. 

As is relevant for purposes of this appeal, the student began attending respondent’s schools in October 2013.  Shortly thereafter, a school district employee who was a mandated reporter of suspected child abuse to Child Protective Services (“CPS”), saw the student walking to the nurse’s office with a mark on her arm.  The student allegedly told the employee that the mark occurred when petitioner hit the student in the arm with a spoon.  The employee reported the incident to CPS on November 1, 2013.  CPS investigated and found the complaint of abuse to be unfounded on December 13, 2013.

During the remainder of the 2013-2014 school year, petitioner raised various complaints and allegations to respondent’s superintendent and staff, including the employee responsible for compliance with Title VI of the Civil Rights Act of 1964 (“Title VI officer”).  Petitioner’s allegations included, inter alia, complaints regarding the November 2013 CPS report; that school employees were discriminating against and bullying her and the student and that respondent failed to properly investigate and address such claims; that the student was not being informed of upcoming tests; that petitioner was not receiving information regarding the school; that there were cameras in the school bathrooms; and that school bus drivers were “stalking her.”  Petitioner’s first appeal ensued and was dismissed on various grounds, including untimeliness, lack of jurisdiction, and petitioner’s failure to carry her burden of proof (Appeal of V.S., 58 Ed Dept Rep, Decision No. 17,508).

In September 2014, petitioner emailed the principal of the student’s school, alleging that the student was being bullied by her teacher and the principal.  Petitioner copied the school’s DASA coordinator on this email.  The DASA coordinator thereafter spoke with petitioner, who requested that the student not be greeted by certain school employees when she arrived at school.  The DASA coordinator avers that, with “some misgivings,” he acceded to petitioner’s request and instructed the employees not to greet the student.  Petitioner then requested that additional school employees refrain from greeting the student.  The DASA coordinator scheduled a meeting with petitioner for October 9, 2014.  Petitioner cancelled this meeting on the morning of October 9, 2014, stating that she “could not meet” until the DASA coordinator “could promise that bus drivers would refrain from harassing her.”  The DASA coordinator indicated that he could not make such a promise as the bus drivers were not engaged in such conduct.

The record indicates that the DASA coordinator subsequently made multiple efforts to contact petitioner to address her claims.  The DASA coordinator was able to meet with the student at school and offered to assist her.  In response, the student “demonstrated anxious non-verbal behaviors and indicated that she could not speak without her mother present.”  The DASA coordinator indicates in an affidavit that he attempted to investigate petitioner’s claims with the information available to him, but that this investigation has been “limited” because petitioner and the student have refused to speak to him.  This appeal ensued.

Although the petition is not entirely clear, the gravamen of petitioner’s claims in this appeal appear to be that the district continues to bully and harass both her and the student in “retaliation for seeking protection under DASA” and filing Appeal of V.S., 58 Ed Dept Rep, Decision No. 17,508.  Specifically, petitioner alleges that respondent has directed school buses to park at a location and surveil her home; that the school district has installed cameras in the girls’ bathroom; and that the local police department, acting at respondent’s behest and “as a result” of her initiation of Appeal of V.S. (58 Ed Dept Rep, Decision No. 17,508), has harassed her and conducted surveillance of her.  Petitioner seeks the following relief: (1) implementation of DASA within the district, including refusal by the district to teach certain components required by DASA, such as civility; (2) inclusion of the DASA coordinator in the student handbook; and (3) “[a]nything that can be done to address the schools [sic] relationships with the local police department ....”

Respondent contends that the appeal must be dismissed as petitioner’s claims are untimely and the relief requested is outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  Respondent also argues that the appeal must be dismissed because the petition does not contain an original signature of petitioner and the notary public and, instead, was signed electronically.  Respondent further contends that, even if petitioner’s claims could be considered, petitioner has not met her burden of proving a clear legal right to her requested relief. 

First, I must address several procedural matters.  Petitioner submitted a reply.  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.

Next, respondent claims that the petition must be dismissed because petitioner and the notary signed it electronically.  New York State Technology Law §304(2) governs the use of electronic signatures and provides that, unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand, and the use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.  Section 275.4 of the Commissioner’s regulations requires that the names of parties or attorneys be “endorsed” on all papers; however, the regulation does not define the word “endorsed” nor does it explicitly prohibit the use of electronic signatures.  I additionally note that General Construction Law §46 indicates that a broad range of marks may serve as acceptable forms of a signature, including:

[A]ny memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing. 

Therefore, considering the permissive scope of the State Technology Law and the General Construction Law concerning signatures, I decline to dismiss the petition for lack of original signatures (Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438).

With respect to respondent’s objection to the notary’s use of an electronic signature, I note that the Appellate Division has held that the New York State Legislature “appear[s] to have chosen to incorporate the substantive terms of E–SIGN [Electronic Signatures in Global and National Commerce Act, 15 USC § 7001 et seq.] into New York state law” (Martin v. Portexit Corp., 98 AD3d 63; quoting Naldi v. Grunberg, 80 AD3d 1, lv. denied 16 NY3d 711).  Section 7001(g) of E-SIGN provides that:

If a statute, regulation, or other rule of law requires a signature or record relating to a transaction in or affecting interstate or foreign commerce to be notarized, acknowledged, verified, or made under oath, that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable statute, regulation, or rule of law, is attached to or logically associated with the signature or record.

Here, the record indicates that petitioner’s verification was “[s]ubcribed and sworn before” a notary.  Respondent submits no evidence to contradict this evidence.  Therefore, there is no basis in the record upon which to deem the notary’s electronic signature invalid under the circumstances.

Respondent also argues that 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  It appears that petitioner intends to challenge respondent’s actions with regard to her June 2014 complaints regarding school bus drivers, and her September and October 2014 complaints to respondent regarding (1) her daughter being forced into greetings and interactions with “anyone accused of wronging [her] daughter”; (2) the alleged existence of cameras in the school; and (3) the alleged conduct of school bus drivers.  The most recent of such complaints appears to have been sent via email to the superintendent on October 14, 2014, which followed a series of email correspondence between petitioner and the superintendent and other district employees since September 2014 regarding petitioner’s complaints, including those related to school bus drivers.  In the October 14 email, petitioner asserted that the bus drivers were continuing “incorrect parking” and that if she did not hear from the superintendent “it will be noted that you have refused to communicate any further on the subject and I will proceed accordingly.”  This appeal was commenced on November 21, 2014.  Accordingly, as petitioner’s claims herein relate to conduct that occurred more than 30 days prior to the commencement of the appeal, the appeal must be dismissed as untimely.

To the extent petitioner contends that respondent has failed to provide the instruction required by 8 NYCRR §100.2(c)(2)and has failed to include the name, designated school and contact information of the DASA coordinator in the student handbook as required by 8 NYCRR §100.2(jj)(4)(vii), such claims were raised and dismissed in Appeal of V.S., 58 Ed Dept Rep, Decision No. 17,508.  Since that prior appeal dismissed the same claims on the same facts, petitioner is barred from relitigating those issues and petitioner’s claims must be dismissed under the doctrine of res judicata (see, Appeal of Mitzner, 32 Ed Dept Rep 533, Decision No. 12,906).  In any case, on this record, petitioner’s claims would be dismissed for the same reasons that they were dismissed in that prior appeal.  Petitioner has failed to meet her burden of proving that respondent has violated 8 NYCRR §100.2(c)(2) or (jj)(4)(vii). 

In addition, to the extent petitioner raises claims regarding the local police department, such claims must be dismissed for lack of jurisdiction.  The Commissioner has no jurisdiction to review actions taken by police departments, their officers, or their employees (Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242).  Moreover, other than her conclusory assertions, petitioner has adduced no proof whatsoever that school district officers or employees directed the police to engage in any improper activity or otherwise acted improperly in this regard.

Although the appeal must be dismissed as described above, I note that in an affidavit, the DASA coordinator explains:

I attempted to investigate Petitioner’s allegations, including reviewing videotapes at the start and end of the school day, but those searches yielded no evidence to support claims of harassment.  Without the ability to speak with Petitioner and [the student], my investigation is limited....  I will continue to investigate Petitioner’s complaints to the best of my ability under the circumstances.

While I recognize the challenges presented in investigating petitioner’s allegations under these circumstances, I also note that the DASA coordinator, while acknowledging such difficulties, avers that his investigation “yielded no evidence to support claims of harassment.”  However, despite such finding, the record contains no evidence that such investigation was actually completed or that any findings were communicated to petitioner.  I remind respondent of its obligations in this regard (see Education Law §13[1]; Appeal of V.S., 58 Ed Dept Rep, Decision No. 17,508).

I have considered petitioner’s remaining contentions and find them to be without merit.  Although the appeal must be dismissed, I note that nothing herein should be construed as minimizing the serious safety, social and emotional issues raised by harassment and bullying in public schools.