Decision No. 17,861
Appeal of WILLIAM KING MOSS III from action of Richard Loeschner as superintendent, the Brentwood Union Free School District, and the Brentwood Teachers’ Association and application for removal of Richard Loeschner as superintendent and Robert Feliciano, G. Paula Moore, Eileen Felix, Julia Burgos, Cynthia Ciferri, Maria Gonzalez-Prescod and Simone Holder-Daniel as trustees of the Board of Education of the Brentwood Union Free School District.
Decision No. 17,861
(June 30, 2020)
Bond, Schoeneck & King, PLLC, attorneys for respondents Richard Loeschner, Brentwood Union Free School District Robert Feliciano, Eileen Felix, Maria Gonzalez-Prescod, Simone Holder-Daniel, Julia Burgos, Cynthia Ciferri and G. Paula Moore, Candace J. Gomez, Esq., of counsel.
Robert T. Reilly, attorney for respondent Brentwood Teachers Association, Gregory M. Ainsley, Esq., of counsel.
TAHOE., Interim Commissioner.--Petitioner appeals from action of Richard Loeschner as superintendent (“respondent Loeschner”), the Brentwood Union Free School District, and the Brentwood Teachers’ Association (“BTA”) and seeks the removal of respondent Loeschner and trustees Robert Feliciano, G. Paula Moore, Eileen Felix, Julia Burgos, Cynthia Ciferri, Maria Gonzalez-Prescod, and Simone Holder-Daniel (“trustees”) (collectively, “respondents”), as members of the Board of Education of the Brentwood Union Free School District (“board” or “district,” as applicable) regarding an allegedly unconstitutional gift of public funds. The appeal must be dismissed and the application must be denied.
On March 28, 2019, the district held a superintendent’s conference day. During the conference, teachers were given the opportunity to attend a variety of professional development workshops. According to the record, superintendent conference days are “staff training days where ... teachers  do not have to tend to students and therefore are available for professional development workshops and trainings.” Teachers “typically report to school during normal business hours and are paid their usual salary for the day.”
The record contains a document dated March 28, 2019 titled “2019 BHS Conference Day Workshops” that identifies and describes the offered workshops. The document indicates that the district offered seventeen workshops altogether, which included nine instructional workshops and eight elective workshops. One of the instructional workshops provided teachers the opportunity to meet with “chief delegates” from the BTA and discuss professional responsibilities, among other things. A second instructional workshop, titled “End of the Year Survival Guide,” provided teachers with “tips, suggestions, and tangible assistance so you can have a more peaceful end of the year” including mindfulness and meditation strategies. Eight elective workshops were offered in the following topic areas: basic automotive care, partner drumming/cardiovascular exercise, introduction to 3D printing and computer-aided design and drafting, dieting and lifestyle, laughter yoga/wellness, rock climbing, “Salt Life,” and family history/genealogy. While the parties dispute the particulars of the superintendent’s conference day, they generally agree that teachers were directed to choose from at least two workshops during the day, one of which was instructional. Respondents also indicate that a third workshop focusing on restorative justice practices was included. This application and appeal ensued.
Petitioner asserts that paying district teachers to attend the superintendent’s conference day constituted an unconstitutional gift of public funds because it cost the district approximately $46,000 “in man-hours wasted on personal trainings instead of professional trainings.” Petitioner further asserts that the superintendent’s approval of specific workshops was “an illegal act” and that the trustees were negligent in “their duty to approve instruction to staff, [and] supervise the superintendent.” Petitioner also maintains that the district was negligent in training “all Brentwood High School teachers” in the 2018-2019 school year in several topic areas, including the Dignity for All Students (“DASA”), sexual harassment, and bilingual education.
For relief, petitioner requests that respondent Loeschner and the board of trustees be removed from office. Petitioner also requests that respondent Loeschner be ordered to return to the district an amount equivalent to the portion of salaries paid to teachers who attended any elective workshops during the conference. Petitioner additionally requests that respondents provide trainings to district employees in several specific areas. Petitioner further requests a protective order for the preservation of any and all materials, records, sign in sheets, attendance sheets, teacher schedules, workshop summaries, reports, emails, meeting agendas and meeting minutes regarding the superintendent’s conference day. Finally, petitioner requests reimbursement from the district for the fees associated with the filling of this petition.
Respondents contend that the application must be dismissed for failure to join necessary parties. Respondents also assert that the application for removal must be dismissed because the notice of petition fails to advise respondent Loeschner and the trustees that an application for removal is being made. Respondents further argue that petitioner’s argument is without merit and that a board of education is authorized to use its discretion in providing trainings to its teachers and that the trainings offered did not constitute a gift of public funds. Respondents additionally argue that the BTA is not subject to the jurisdiction of the Commissioner.
I must first address several preliminary matters. Petitioner objects to the answer submitted by respondents Ciferri, Moore, and the board as untimely. Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service. Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3). Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731). In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).
In this case, petitioner originally served a copy of the petition on the district clerk on April 22, 2019. On April 24, petitioner served a copy of the petition on trustees Ciferri and Moore. On April 25, petitioner emailed the district clerk, stating: “I am no longer submitting the commissioner petition that was served to you on April 22, 2019. A similar new and adjusted petition will be forthcoming.” Petitioner then served a copy of the petition on trustees Feliciano and Holder-Daniel on April 26 and trustees Felix, Burgos, Gonzalez-Prescod, and respondent Loeschner on April 27. Counsel for respondent indicates that she incorrectly calculated the answer due date for trustees Ciferri, Moore, and the board due to the ambiguous language of petitioner’s email. Counsel for respondent requested an immediate extension of time upon discovery of this error. Given the number of respondents in this appeal, the confusing circumstances surrounding service of the petition and the ambiguity of petitioner’s email, I will excuse the late filing of the answer on behalf of respondents Ciferri, Moore, and the board (see Appeal of Schonfeld, 38 Ed Dept Rep 306, Decision No. 14,040).
Petitioner also 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, I have not considered those portions of the reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
To the extent petitioner asserts claims against the BTA, such claims must be dismissed for lack of jurisdiction. It is well-settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310 (Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,236; Appeal of Parker, 56 id., Decision No. 17,054; Appeal of Hoefer, 41 id. 203, Decision No. 14,664; Appeal of Christe, 40 id. 412, Decision No. 14,514; Appeal of Goldin, 38 id. 317, Decision No. 14,043).
Respondents next contend that to the extent the petition seeks removal of each member of the board of trustees, the petition must be dismissed for failure to join necessary parties. An individual whose removal is sought pursuant to Education Law §306 must be named as a respondent in the caption of the petition to inform him or her that he or she must enter a defense or face the possibility of removal (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756; Appeal of Race, 53 id., Decision No. 16,567; Appeal of Destino, 52 id., Decision No. 16,461; Appeal of Foshee, 38 id. 346, Decision No. 14,051). Failure to name the individual sought to be removed is a fatal flaw, resulting in failure to properly join such individual as a necessary party, and warranting denial of the application for removal (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756; Appeal of Race, 53 id., Decision No. 16,567; Appeal of Destino, 52 id., Decision No. 16,461; Appeal of Foshee, 38 id. 346, Decision No. 14,051). In this case, only respondent Loeschner and the board were named as respondents in the caption of the petition. Petitioner’s failure to name any of the individual trustees in the caption is a fatal flaw warranting denial of the application as against them (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,387; Appeal of Hadden, 57 id., Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).
Petitioner contends that he omitted the trustees’ names “[b]ecause of the length of the caption” and asserts that he provided a list of all respondents on page one of the petition under the heading “Verified Petition.” I do not find that this excuses petitioner’s failure to include the trustees whose removal he seeks in the caption of the petition. The resultant size of the caption is irrelevant, and petitioner’s list of respondents on page one of the petition, which is not a caption, gives no indication that he is seeking the removal of the named respondents from office. Therefore, the application for removal must be denied as against respondents Feliciano, Felix, Gonzalez-Prescod, Holder-Daniel, Burgos, Ciferri and Moore for failure to join necessary parties.
Petitioner’s request for a “protective order” preserving specific records and materials must be dismissed as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310. It appears that petitioner seeks the preservation of all materials related to the March 28, 2019 superintendent’s conference day. The retention of school district records, however, is governed by Records Retention and Disposition Schedule ED-1 (8 NYCRR Appendix I) and there is no evidence in the record that respondents have not complied with this schedule. In any event, the Commissioner has held that relief such as a protective order should be sought in a court of competent jurisdiction (Application and Appeal of Moss, 58 Ed Dept Rep, Decision No. 17,602; Appeal of Kalnitz, 53 id., Decision No. 16,600).
Turning to the merits, Education Law §1709(32) specifically authorizes a board of education “to provide, in its discretion, in-service training for its teachers” (Appeal of Moravia Teachers’ Association, 36 Ed Dept Rep 413, Decision No. 13,764). Article VIII, section 1 of the New York State Constitution prohibits a gift of public funds to an individual. This section generally prohibits the expenditure of school district money for the benefit of private parties unless it is in furtherance of a proper public purpose and is undertaken pursuant to a statutory obligation or properly authorized contract under which the municipality receives fair and adequate consideration (see Antonopoulou v. Beame, 32 NY2d 126; 1989 Opn. State Compt. No. 89-50). However, where the expenditure primarily furthers a proper public purpose and only incidentally benefits an individual, the incidental private benefit will not invalidate the action (Waldo’s v. Village of Johnson City, 74 NY2d 718; Murphy v. Erie County, 28 NY2d 80; Opn. State Compt. No. 92-5).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Petitioner has failed to meet his burden of proving that the workshops provided during the superintendent’s conference constituted an impermissible gift of public funds. Respondents explain that the superintendent’s conference day was developed by the high school’s school improvement team, and it was the improvement team’s intent to address both teachers of “core subjects” as well as “guidance, health, physical education, culinary, technology, art, and music faculty.” Respondents further assert that the workshops were designed to meet “a variety of aspects of professional development” including core instructional strategies as well as “social-emotional and operational efforts.” Respondents further contend that some of the workshops such as laughter yoga, “Salt Life,” and 3D printing and computer-aided design and drafting provided insight and strategies to be utilized with students in the classroom and/or social/emotional and operational support to district teachers. Respondents also assert that the instructional workshops “delivered opportunities for developing best practices, blended learning, integration of technology, strategies for working with English as a New Language (“ENL”) students, incorporation of engagement activities, understanding of professional responsibility and [NYSED] requirements for both teachers and students, research practices, and deeper understanding of available resources and funding opportunities.”
The section of the New York State Constitution prohibiting gifts of public funds “was intended to curb raids on the public purse for the benefit of favored individuals or enterprises furnishing no corresponding benefit” to the public (New Windsor Volunteer Ambulance Corps Inc. v. Meyers, 442 F3d 101, quoting Taylor v. McGuire, 100 Misc2d 834). Against this standard, I find that any incidental personal benefits received during the March 28, 2019 superintendent’s conference day do not negate the public purpose of providing teachers with yearly professional development. As a result, I find that petitioner has not met his burden of proving that respondents violated Article VIII, §1 of the New York State Constitution.
With respect to petitioner’s argument that respondent Loeschner should be removed from office pursuant to Education Law §306, petitioner has not established that the superintendent engaged in a willful violation of law or neglect of duty. Therefore, petitioner’s removal application as against respondent Loeschner must be denied (see Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253).
Petitioner also argues that the district was negligent in training district teachers during the 2018-2019 school year and requests an order that respondents provide certain trainings. Other than his conclusory assertion that the district failed to offer sufficient training in several areas, including DASA, sexual harassment, and bilingual education, petitioner provides no evidence in support of this claim. As a result, it must be dismissed. However, I remind respondents that, by September 1st of each school year, each school district shall adopt or, in the case of multi-year plans, readopt a professional learning plan that, among other things, provides for training, where applicable, in school violence prevention and intervention, child abuse recognition, the needs of children with autism, and DASA for employees holding a teaching certificate or license in the classroom teaching service, pupil personnel service, or educational leadership service (8 NYCRR §§100.2[dd][i], [iii]). Such professional learning plans must also describe how the school district will provide certain certificate holders with certain percentages of professional learning clock hours in language acquisition addressing the needs of English language learners (see 8 NYCRR §100.2 [dd][v]).
To the extent that petitioner seeks reimbursement for the filing fees or costs to file this appeal, those claims must be dismissed. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).
Finally, respondents request a certificate of good faith pursuant to Education Law §3811(1) on behalf of all individual respondents. Such certification is solely for the purpose of authorizing the board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in §3811(1). It is appropriate to issue such certification unless it is established on the record that the requesting respondent acted in bad faith (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594; Application of Lieberman, 52 id., Decision No. 16,483). The application is denied in part on procedural grounds and in part on the merits; as such, there has been no finding that any individual respondent acted in bad faith. Therefore, I hereby certify solely for the purpose of Education Law §3811(1) that all individual respondents are entitled to the requested certification.
THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.
 This caption has been modified to reflect the nature of petitioner’s claims and, as described herein, does not reflect the caption of the petition.
 Petitioner also requests an order that the superintendent and board of education refrain from providing personal trainings and services to district employees.
 Indeed, the caption does not indicate that petitioner seeks any board member or school officer’s removal; it merely, after identifying the superintendent and the board, states: “regarding gifts of public funds and negligence of duty.”
 Black’s Law Dictionary defines “caption” as: “[t]he introductory part of a court paper stating the names of the parties, the name of the court, the docket or file number, and a description of the paper” (Black’s Law Dictionary, definition of “caption” [11th ed. 2019]).
 Although 8 NYCRR §275.2(b), entitled “Protective Orders” permits the issuance of “such orders as may be necessary to fairly and adequately protect the interests of the persons on whose behalf the appeal is brought,” this is located within the section of the practice regulations governing “Class appeals.” Thus, this provision only applies to such appeals.
 Petitioner submits two pages of the contract between respondent and the BTA indicating that teachers are entitled to one full day of staff development each school year. There is no evidence in the record suggesting that the contract prohibits trainings such as the March 28, 2019 superintendent’s training day.
 As indicated above, I have already determined that petitioner failed to join the trustees by naming them in the caption of the application, which warrants denial of the application as against them. In any event, I note that petitioner has not established that any trustee engaged in a willful violation of law or neglect of duty.
 Additionally, to the extent that petitioner claims that additional investigations are needed to determine the adequacy of teacher training, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).