Appeal of WILLIAM KING MOSS, III, from action of the Board of Education of the Brentwood Union Free School District;  Richard Loeschner as superintendent; and Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri as trustees regarding a personnel matter and application for the removal of Richard Loeschner as superintendent and Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri as trustees.

Decision No. 17,955

(January 6, 2021)

Bond, Schoeneck & King, PLLC, attorneys for respondents, Candace J. Gomez, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals from action of the Board of Education of the Brentwood Union Free School District (“board”); Richard Loeschner as superintendent (“superintendent”); and Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri as trustees (“trustees”) (collectively, “respondents”) concerning the compensation afforded to a district employee.  Petitioner additionally seeks removal of the superintendent and trustees from office.  The appeal must be dismissed and the application must be denied.

Although the precise circumstances giving rise to this appeal are not entirely clear from the record, a detailed recitation of the facts is unnecessary given the disposition of this appeal.  According to petitioner, a former district employee (“employee”) was accused of having an inappropriate relationship with a student in the district and thereafter reassigned to his home with pay on or around December 20, 2018 through June 30, 2019.  This appeal ensued. 

Petitioner argues that respondents impermissibly made a gift of public funds by paying the employee his salary from December 20, 2018 to June 30, 2019 while he was reassigned to his home.  Petitioner also contends that such action is part of a pattern of disciplinary practices that favor white employees over African American employees.  For relief, petitioner requests an order directing respondents “to only compensate teachers [who] are assigned to duties taking place on [d]istrict property” and seeks the removal of the superintendent and trustees from office. 

Respondents claim, among other things, that the appeal and application are untimely and outside the scope of the Commissioner’s jurisdiction. 

First, I must address a procedural 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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 and the application must be denied 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).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of P.P., 57 Ed Dept Rep, Decision No. 17,321; Application of Kelty, 48 id. 476, Decision No. 15,921).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of P.P., 57 Ed Dept Rep, Decision No. 17,321; Application of Nett and Raby, 45 id. 259, Decision No. 15,315). 

Here, petitioner challenges respondents’ payment of the employee’s salary between December 20, 2018 and June 30, 2019.  Petitioner commenced the instant appeal in December 2019 – nearly six months after the conclusion of the challenged action.  Petitioner does not set forth good cause for the delay in the petition, as required (8 NYCRR §275.16).[1]  Accordingly, petitioner’s claims concerning respondents’ alleged payment of the employee’s salary between December 20, 2018 and June 30, 2019 – including petitioner’s request to remove the superintendent and trustees from office on the basis thereof – must be dismissed as untimely.[2]

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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