Decision No. 18,010
Appeal of A.B., on behalf of her child A.B., from action of the Board of Education of the City School District of the City of Ithaca regarding an investigation, and application for the removal of Robert Ainslie and Sean Eversley Bradwell as board members, Lily Talcott as Deputy Superintendent, and Dr. Luvelle Brown as Superintendent of the City School District of the City of Ithaca.
Decision No. 18,010
(June 21, 2021)
Bond, Schoeneck & King, PLLC, attorneys for respondents City School District of the City of Ithaca, Robert Ainslie, Sean Eversley Bradwell, and Lily Talcott, Jonathan B. Fellows, Esq., of counsel
Schlather, Stumbar, Parks & Salk, LLP, attorneys for respondent Dr. Luvelle Brown, Mark A. Schlechter, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the City School District of the City of Ithaca (“respondent board”) regarding an investigation. She also seeks the removal of Robert Ainslie and Sean Eversley Bradwell as board members, Lily Talcott as deputy superintendent, and Dr. Luvelle Brown as superintendent (collectively, “respondents”). The appeal must be dismissed and the application must be denied.
Petitioner is the former spouse of Dr. Brown. Petitioner and Dr. Brown have two children who attended respondent board’s district during the 2019-2020 school year.
In a letter dated November 23, 2020, petitioner alleged that, during the 2019-2020 school year, Dr. Brown “abuse[d] his power” to obtain preferential treatment of their child, A.B. She also alleged that Dr. Brown improperly “block[ed]” A.B. from receiving special education services. Petitioner requested that respondent board conduct an “independent” investigation into Dr. Brown’s alleged abuses of his position.
In a letter to petitioner dated December 24, 2020, respondent board stated that, after investigating petitioner’s claims, it had determined that her complaints were the result of “an ongoing family dispute between [petitioner and her] former husband and were therefore outside of the Board of Education’s purview.” This appeal ensued.
In this appeal, petitioner reiterates the allegations she made to respondent board below, arguing that it “erred ... [by] describing [her] allegations ... as being of a purely domestic matter” and by describing certain allegations as being “outside of [its] purview.” For relief, petitioner requests censure and/or removal of respondents from their respective positions for failure to properly investigate Dr. Brown’s alleged abuses.
Respondents deny petitioner’s material allegations and assert that petitioner has failed to meet her burden of establishing a basis for removal. The individual respondents request certificates of good faith pursuant to Education Law § 3811 (1).
I must first address the scope of my review in this appeal. Respondent board’s December 24, 2020 letter to petitioner addressed a host of allegations concerning Dr. Brown. Although petitioner may seek review of respondent board’s final determination in this appeal, she may not obtain review of any underlying claims that occurred more than 30 days prior to service of the petition. Indeed, some of these allegations date back to February 2020, almost a year before petitioner commenced this appeal. An appeal to the Commissioner must be commenced within 30 days from the decision or 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). Therefore, my review is limited to the rationality of respondent board’s December 24, 2020 response. To hold otherwise would allow a petitioner to obtain review of any untimely allegation so long as she or he commenced an appeal to the Commissioner within 30 days after the denial of a request to investigate (cf. Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,483). As such, the sole act before me in this appeal is respondent board’s decision, reflected in its December 24, 2020 letter, not to take further action in response to petitioner’s written complaints on the basis that the concerns raised by petitioner to respondent board “relate to an ongoing family dispute between [petitioner] and [Dr. Brown] and are therefore outside of [respondent board’s] purview.”
Additionally, petitioner submitted a late reply in this matter. A reply must be served within 10 days after service of the answer to which it responds (8 NYCRR 275.14 [a]). If the answer was served by mail, the date of mailing and the four days subsequent thereto shall be excluded in calculating the 10-day period (8 NYCRR 275.14 [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803). My Office of Counsel granted an extension of time for petitioner to submit her reply on or before March 25, 2021. Petitioner’s affidavit of service, however, reflects that service was not made until March 29, 2021. Petitioner offers no explanation for the delay. Accordingly, I decline to accept the reply into the record.
To the extent petitioner seeks removal of Dr. Brown, individual members of respondent board, or any other school officer under Education Law § 306, the application must be dismissed for lack of the requisite notice. Section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310. The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660). Thus, a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).
Here, there is no evidence that the notice of petition served on respondents includes the language required by 8 NYCRR 277.1 (b). Therefore, petitioner’s application for removal of Dr. Brown or any member of respondent board must be denied (see e.g. Appeal of Moss, 59 Ed Dept Rep, Decision No. 17,861; Appeal of Nappi, 57 id., Decision No. 17,387; Appeal of Affronti, 54 id., Decision No. 16,756).
Turning to the merits, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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 establish that respondent board acted in an arbitrary or capricious manner when it declined to take further action in response to her complaints. Respondent board has submitted numerous affidavits in which it explains its consideration and investigation of petitioner’s allegations. This evidence demonstrates that respondent board took petitioner’s concerns seriously but ultimately deemed them unfounded or outside of its purview to take any official action. Respondent board’s conclusions are summarized below:
- Alleged interference with a Child Protective Services (CPS) investigation. At the request of respondent board, its legal counsel interviewed Dr. Brown and the building principal of petitioner’s child; based on that interview, respondent board determined that petitioner’s allegations that Dr. Brown had attempted to interfere with a CPS investigation were unfounded. Respondent also obtained a determination from the New York State Office for Children and Families indicating that the petitioner’s allegations of child abuse were unfounded.
- Alleged violation of a court order. Respondent board’s attorney interviewed the building principal, who indicated that she had not been provided with any court order prohibiting petitioner or Dr. Brown from accessing the student’s elementary school.
- Improper use of district technology. Dr. Brown admitted that he had established a private virtual classroom for himself and his child. Dr. Brown agreed, following respondent board’s investigation, to delete the virtual classroom. Dr. Brown asserts that he never actually used the classroom, and no evidence in the record suggests otherwise.
- Access to educational records. The record reflects that respondent board agreed to provide, and did provide, requested educational records to petitioner. While petitioner may not have received these records as expeditiously as she desired, it appears that any delay was the result of respondent board’s good faith attempt to ascertain petitioner’s custody rights.
- Allegations regarding a district employee. In response to petitioner’s allegation that Dr. Brown had an inappropriate relationship with a district employee, respondent board determined that: (1) at the time of its investigation, the employee had not been a district employee for over three years; (2) the board did not have a policy that prohibited this relationship in effect at the time; and (3) the employee was duly qualified for the position (which petitioner admitted). Petitioner did not allege below, as she does on appeal, that the relationship “was the basis for her appointment.”
- Special education and decision-making allegations. Respondent determined that, during the time periods petitioner complained of (i.e., prior to March 19, 2020), Dr. Brown possessed sole educational decision-making authority over the student. I lack jurisdiction to adjudicate any claims under the Individuals with Disabilities Act or Section 504 of the Rehabilitation Act of 1973 (see, e.g., Appeal of M.P., 59 Ed Dept Rep, Decision No. 17,848). In any event, respondent correctly notes that although a “custodial parent has sole decision-making authority with respect to practically all aspects of [a] child’s upbringing, ... there is nothing which prevents a noncustodial parent ... from requesting information about, keeping apprised of, or otherwise remaining interested in the child’s educational progress” (Fuentes v Bd. of Educ. of City of N.Y., 12 NY3d 309, 313 ).
Therefore, with respect to these claims, I cannot find that respondent board erred in declining to order “an independent and fair investigation,” the relief sought by petitioner in her letter to respondent.
I acknowledge, as petitioner asserts, that respondent board’s characterization of her complaints as “relat[ing] to an ongoing family dispute” improperly minimizes the nature and extent of her allegations. Nevertheless, this phraseology does not reflect the nature and extent of respondent board’s investigation. As respondent board’s vice president attests,
The Board ... discussed [petitioner’s] allegations at length ... [and] made certain determinations ... regarding which allegations ... warranted follow up, and which allegations were connected to [petitioner’s] protracted and contentious legal separation and [therefore] outside the Board of Education’s purview.
Thus, it appears that respondent board sought to distinguish between school or employment-based allegations, which it could investigate, and private or custodial matters, which were within the exclusive jurisdiction of Family Court.
One administrative matter remains. Respondents request certificates of good faith pursuant to Education Law § 3811 (1). Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811(1). The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594). In view of the fact that the removal application has been dismissed on procedural grounds and there is no evidence that any respondent acted in bad faith, I hereby certify for the purpose of Education Law § 3811 (1) that President Ainslie, Vice President Bradwell, and Dr. Brown are entitled to receive the requested certification.
I have considered petitioner’s remaining arguments and find them to be without merit.
THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.
END OF FILE
 Petitioner’s allegations do not concern, as she argues, continuing wrongs that would toll the 30-day time limitation. Rather, petitioner complains of discrete acts of misconduct as described herein (see generally Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883).
 Additionally, my Office of Counsel clarified, in a March 24, 2021 email, that the reply had to be served on the following day to be considered timely.
 Even if the reply were timely, portions of it would not be accepted into the record. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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, 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 could not be considered.
 While I need not address this issue given my conclusion above, the Commissioner has previously held that deputy superintendents such as Ms. Talcott are not school officers subject to removal under Education Law § 306 (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Appeal of Berman, 46 id. 64, Decision No. 15,442).
 As indicated above, it appears that Ms. Talcott, as deputy superintendent, is not a school officer subject to removal under Education Law § 306. Consequently, the certification provisions of Education Law § 3811 concerning “trustees ... or any school district officers” do not apply to her.