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Decision No. 18,359

Appeal of GREGORY MELTON from action of the Board of Education of the City School District of the City of Poughkeepsie regarding the use of school facilities and application for the removal of Dr. Eric Rosser as Superintendent.

Decision No. 18,359

(November 28, 2023)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the City School District of the City of Poughkeepsie (“respondent”) in denying his request to use district facilities and seeks the removal of superintendent Eric J. Rosser in connection therewith.  The appeal must be dismissed and the application denied.

Gregory Melton and his spouse operate an afterschool program under the name “Black and Latino Coalition.”[1]  In fall 2021, the principal of one of respondent’s elementary schools (“elementary school”) approved petitioner’s request to use its facilities for the afterschool program.  The principal indicates that petitioner evaded her requests for information about the nature of the program for several months.  The principal developed additional concerns throughout the year based on the following:

  • On one occasion, unsupervised elementary students in the program were found playing with sharpened sticks on the school playground;
  • Volunteer staff were minors;
  • Participating students regularly left “[t]rash and snack wrappers” in the “playground and classroom areas”;
  • Mr. Melton and his spouse did not follow school directives regarding the sale of snacks on school property; and
  • Mr. Melton frequently entered the elementary school “during the school day unannounced and without authorization.”

In August 2022, petitioner applied to utilize respondent’s elementary school for the 2022-2023 school year.  Respondent denied this request on October 7, 2022.  Petitioner applied to use the school building for the 2022-2023 school year a second time on December 9, 2022.  This request was also denied; this appeal ensued.

Petitioner challenges respondent’s denial of his application to operate the afterschool program at respondent’s elementary school.  He alleges that respondent and school district employees acted in a rude, unreasonable, and discriminatory manner toward him and his spouse.  Petitioner seeks reversal of respondent’s decision as well as a declaration that his students may participate in the afterschool program “without being harassed.”  He further seeks the removal of the superintendent, a principal, the director of security, two assistant superintendents, and “some members” of the board. 

Respondent argues, among other things, that the appeal must be dismissed as untimely.[2]  Respondent also argues that the application for removal should be denied on procedural grounds.  On the merits, respondent argues that it permissibly declined petitioner’s application to utilize the elementary school for the 2022-2023 school year based upon petitioner’s failure to safely utilize school property and abide by the principal’s directives.  

Initially, petitioners’ application for removal of the superintendent must be denied for lack of the notice required by section 277.1 (b) of the Commissioner’s regulations.  That section 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).  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).  Petitioner’s application lacks the required notice and, thus, must be denied (Application of Petrie, 63 id. Decision No. 18,339; Appeal and Application of Najm, 59 id., Decision No. 17,853).[3]

Turning to the merits, Education Law § 414 provides that boards of education may permit the use of district grounds and other property when not in use for school business for certain specific purposes (see Appeal of Barse, 54 Ed Dept Rep, Decision No. 16,753; Appeal of Emilio, 33 id. 75, Decision No. 12,981).  The Court of Appeals has held that local school boards “exercise ultimate authority for access to students, school buildings and school property generally” (Matter of Lloyd v. Grella, 83 NY2d 537 [1994]).  A school board’s determination in this regard may only be reversed if it is determined to be arbitrary or capricious (Application of Brentwood Youth Activities, Inc., 59 Ed Dept Rep, Decision No. 17,821; Matter of Spinowitz, 18 Ed Dept Rep 13, Decision No. 9,719).

As detailed above, respondent possessed ample justification to decline petitioner’s request to utilize its facilities.  Indeed, permitting petitioner to continue using its facilities could foreseeably lead to safety or liability issues. Therefore, the appeal must be dismissed.[4]

Finally, respondent requests a certificate 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).  I hereby certify that Superintendent Rosser is entitled to the requested certification.[5] 

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





[1] While Mr. Melton identified the “Black and Latino Coalition” in the caption of the appeal, he identifies himself as the petitioner throughout the petition and verified its contents.  Thus, notwithstanding his use of “Black and Latino Coalition” in the caption, I find that Mr. Melton is, in fact, the petitioner.  I note that, generally, “[a]n unincorporated association lacks standing to maintain an appeal under Education Law § 310” (Appeal of Barse, 54 Ed Dept Rep, Decision No. 16,753).


[2] While the similarity of petitioner’s October and December 2022 requests raises a substantial question as to whether the latter request constituted a request for reconsideration, I need not resolve this issue as the petition must be denied for the reasons described herein.


[3] Petitioner also seeks removal of other school officers and employees in the body of the petition.  These requests must be denied for failing to join these individuals.  Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to answer the application for removal (8 NYCRR 277.1 [b]; Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).  The Commissioner has consistently denied applications for removal where the petitioner failed to name the individual sought to be removed in the caption of the petition and notice of petition (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).  Here, petitioner failed to name or serve the individuals whose removal he seeks.  Moreover, some of these individuals are not “school officers” within the meaning of Education Law § 2 [13] (see, e.g., Appeal of Trojahn, 57 Ed Dept Rep, Decision No. 17,360).


[4] Petitioner’s allegation that respondents acted with discriminatory intent is not supported by the evidence in the record. 


[5] Were the school officers identified in the body of the petition named in the caption of the appeal or served with a copy of the application, they, too, would be so entitled.