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Decision No. 17,838

Appeal of DONNA GRAHAM from action of the Board of Education of the Menands Union Free School District regarding a personnel matter.

Decision No. 17,838

(May 5, 2020)

Guercio & Guercio, LLP, attorneys for respondent, Kathy A. Ahearn, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner challenges actions taken by the Board of Education of the Menands Union Free School District (“respondent”) regarding a personnel matter.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Petitioner was a tenured teacher in respondent’s district at the time of the events leading to this appeal.  In September 2018, respondent placed petitioner on paid leave while it investigated a disciplinary matter concerning her.  On November 26, 2018, respondent’s superintendent sent petitioner a counseling memorandum[1] that directed petitioner to attend a course on effective classroom management and a course on anger management; to review and comply with certain of respondent’s policies; to treat all students with dignity and respect; and to maintain a professional demeanor.  Petitioner was permitted to return to work on December 3, 2018, with full pay, benefits, and seniority rights.  Upon her return, respondent did not assign petitioner to her former classroom; rather, she was assigned to respondent’s central office as the district’s homeless liaison, district registrar, and grant writer.

In a memorandum dated February 15, 2019, the superintendent informed petitioner that the district was “willing to cover the cost and approve leave time to assist” petitioner in completing the directed courses, if necessary.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 1, 2019.

Petitioner asserts that “the acts of the [d]istrict in removing [her] from the classroom, assigning [her] to work in [a] solitary cubicle, directing [her] to perform work duties which are outside of [her] teaching tenure area and continuing to direct [her] to attend remedial classes all without any hearing or grounded justification are continuing violations of [her] due process rights and rights as a teacher.”  For relief, petitioner requests that respondent’s “action ... taken October 9, 2018 be nullified”[2]; that the counseling memorandum and the February 15, 2019 memorandum be declared illegal and removed from her personnel file; and that she be returned to her former classroom assignment.

Respondent asserts that petitioner has failed to establish the facts that form the basis of her requested relief and/or demonstrate a clear legal right to the relief requested; that it has complied with all applicable laws, rules, and policies; that its actions were rational and reasonable; that it acted properly in issuing a counseling memorandum to petitioner; that it acted properly in reassigning petitioner upon her return to work; and that petitioner failed to exhaust her administrative remedies.

First, I must address several procedural matters.  Petitioner objects to respondent’s answer as improperly verified by its counsel.[3]  In an appeal from the action of a board of education of a school district, an answer must be verified by any person who is familiar with the facts underlying the appeal (8 NYCRR §275.5[a]; see Appeal of Charland, 32 Ed Dept Rep 291, Decision No. 12,833).  Here, petitioner has not established that counsel for respondent was unfamiliar with the facts underlying this appeal.  The record contains email correspondence between counsel for respondent and a labor relations specialist with the New York State United Teachers concerning the issues that gave rise to this appeal.  Counsel for petitioner further indicates, in the verification, that she obtained information from “District Administrators and District Records.”  Petitioner has produced no evidence that counsel for respondent is unfamiliar with the facts of this matter.  Thus, I cannot conclude on this record that counsel for respondent lacked familiarity with the facts such that she could not verify respondent’s answer (see Appeal of G.-J.F., 58 Ed Dept Rep, Decision No. 17,608; Appeal of Quattrone, 58 id., Decision No. 17,601).  Accordingly, I decline to strike respondent’s answer from the record.

Petitioner also complains that the verification to the answer was sworn to before a notary public on March 12, 2019, while the answer is dated, and was served on, March 18, 2019.  Respondent has not explained this discrepancy, which raises a concern as to whether the document verified on March 12, 2019 was the same document that was signed and served on March 18, 2019.  While I agree with petitioner that this was improper, I decline to strike the answer on this basis because there is a relatively small amount of time between the date of verification and the date of service (compare Appeal of Unapanta, 57 Ed Dept Rep, Decision No. 17,166, Unapanta v. Elia, et al.; Supreme Court, Albany County; Weinstein, J. judgment granted dismissing petition; January 25, 2018 [upholding Commissioner’s dismissal of petition under Education Law §310 on basis that it was verified more than two months prior to the date of the petition where petitioner was represented by counsel]).

Next, respondent submitted additional affidavits from its counsel and the superintendent and requests that I accept and consider these affidavits because they respond to newly raised claims in the reply.  Respondent and petitioner have also submitted additional papers indicating that, during the pendency of this appeal, petitioner resigned from her position in respondent’s district.  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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Upon review of respondent’s additional affidavits, I find that they appropriately respond to new allegations in the reply and do not find that they raise any new claims or defenses that should have been included in respondent’s answer.  Therefore, I have accepted them in my discretion.  Moreover, I will exercise my discretion and accept the parties' additional submissions to the extent that they address whether the appeal is moot as a result of events which occurred after the parties' pleadings were submitted (Application of Adams, 59 Ed Dept Rep, Decision No. 17,787; Appeal of Jane Doe, 58 id., Decision No. 17,627).

The appeal must be dismissed, in part, 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  By letter dated August 5, 2019, counsel for respondent notified my Office of Counsel that petitioner resigned her employment with respondent effective July 31, 2019, and petitioner confirmed her resignation by letter dated August 6, 2019.[4]  Because petitioner has resigned her position, any claims concerning her past or future teaching assignments are moot.

Petitioner’s challenges to the November 26, 2018 counseling memorandum and February 15, 2019 memorandum must also be dismissed as moot.  Although an employee’s resignation may not automatically render a challenge to disciplinary action moot, petitioner does not argue, for example, that her resignation was coerced or that these memoranda will have collateral legal consequences (see Matter of Unit No. 8251, Rensselaer Cty. Local 842 of Civil Serv. Employees Ass'n, Inc., Local 1000, AFSCME, AFL-CIO [City of Troy], 169 AD2d 871).  Therefore, I find that petitioner’s resignation has rendered any challenge to these memoranda moot.

Finally, petitioner’s request that “the action of [respondent] taken [on] October 9, 2018 be nullified” must be dismissed for failure to state a claim upon which relief may be granted.  Respondent has submitted a copy of the official board minutes from its October 9, 2019 meeting, which do not make any reference to petitioner.[5]  Petitioner’s suggestion that respondent directed the superintendent to “remove” her from the classroom, which respondent denies, is not supported by the meeting minutes or any other evidence in the record.  While petitioner further complains of statements made by a labor relations specialist employed by the district at this meeting, petitioner has not identified any adverse actions taken against her at this meeting.  Therefore, petitioner has failed to state a claim upon which relief may be granted concerning the October 9, 2018 board meeting.

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




[1] This document is referred to as a counseling memorandum in this decision for purposes of clarity.  While petitioner suggests that this memorandum constituted a disciplinary reprimand, I need not make any determination with respect thereto given the disposition of this appeal.


[2] Specifically, petitioner claims that respondent took “disciplinary action” against her at an October 9, 2018 board meeting, although she does not elaborate as to the nature of such action in her petition.


[3] Petitioner makes this objection in her reply, which is captioned “Verified Reply No. 2.”  Petitioner previously submitted a response to the district’s affidavit in opposition to her request for interim relief, which she incorrectly captioned as a “Verified Reply.”


[4] By letter dated August 6, 2019, petitioner also informed my Office of Counsel of her resignation from respondent’s district, effective July 31, 2019.


[5] These meeting minutes reflect that respondent entered into executive session to discuss, as relevant here, “the medical, financial, credit, or employment history of a particular person ....”