Appeal of D.M., on behalf of her son D.M., from action of the Board of Education of the Northern Adirondack Central School District, Laura Marlow, Lisa Silver, Kim Barnes and Dana Garrand regarding district procedures and application for removal of members of the board of education.

Decision No. 16,632

(July 24, 2014)

Harris Beach, PLLC, attorneys for respondents, Douglas Gerhardt, Esq., of counsel

King, Jr., Commissioner.--Petitioner challenges various actions of the Board of Education of the Northern Adirondack Central School District (“district”), superintendent Laura Marlow, principal Lisa Silver, school nurse Kim Barnes, and teacher Dana Garrand (collectively “respondents”), relating to the alleged failure to provide medical attention to her son.  Petitioner also seeks removal of the board of education.  The appeal must be dismissed and the application for removal denied.

The record indicates that on December 20, 2010, petitioner’s son injured his ankle during recess at school.  On January 3, 2011, petitioner met with respondents regarding the treatment of her son and requested a copy of the district’s medical policies.  Also on January 3, the student’s teacher prepared a report regarding the December 20 incident detailing the actions she took, including several attempts to take the student to the nurse.  The teacher also indicated in the report that she watched the student throughout the afternoon and that he was not limping, showed no sign of being in pain, and did not mention the incident.  The following day, petitioner filed a complaint against respondents alleging that they failed to contact her at the time of her son’s injury, failed to provide him with appropriate medical attention, failed to have written medical emergency policies for staff, and failed to provide adequate supervision of staff in medical emergencies.

On January 6, the district met with petitioner and developed an accommodation plan pursuant to Section 504 of the Rehabilitation Act of 1973 (“§504”) for the student due to his injury.  At this meeting, according to respondents, the concerns raised in petitioner’s complaint were addressed and petitioner was provided with a copy of the district’s medical policies.

By letter dated March 21, petitioner advised respondent board that she had not received a response to her complaint and requested a response within 30 days.  According to petitioner, her son had a magnetic resonance imaging (“MRI”) scan on April 22 because he continued to experience pain in his ankle and was thereafter diagnosed with “necrosis of his navicular bone.”  This appeal ensued.

Petitioner alleges that respondents did not provide medical attention to her son after he was injured at school, did not prevent further harm to him during the remainder of the day, and did not contact her at the time of the injury.  She also alleges that the district did not have written emergency medical policies in place.  Petitioner requests, among other things, removal of the board and election of new members; permanent written reprimand of the superintendent; termination of the principal; suspension of the teacher, that she receive no benefits during her suspension and that she not be employed in any capacity by the district; verbal reprimand of the nurse; development of a medical injury form; medical training for members of the board and any person who has contact with students; an investigation by the Commissioner regarding an emergency medical policy; and transportation of her son to the Malone Central School District in a small bus until he graduates from high school.

Respondents contend that the appeal should be dismissed and the application for removal denied because the petition is not verified, fails to state a claim upon which relief may be granted, and is untimely.  In addition, respondents assert that the application for removal should be dismissed because petitioner failed to join and serve necessary parties.  They also contend that I lack the authority to grant the remedies petitioner seeks.  Finally, respondents request costs and attorneys’ fees.

Initially, I must address the procedural issues.  Respondent asserts that the appeal must be dismissed because the petition was not verified.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).

     The petition submitted to my Office of Counsel contained the requisite verification.  Although petitioner should have included a copy of the verification with the papers served on respondents, I will excuse this omission because petitioner is not represented by counsel and my Office of Counsel received a verified petition (see Appeal of Carangelo, 49 Ed Dept Rep 217, Decision No. 16,006; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

Respondents request that I disregard petitioner’s “Response” to their answer because it is improper, unverified and sets forth additional facts and allegations not previously asserted in the petition.  Although not labeled a reply, it appears that petitioner, who is not represented by counsel, intended this document to serve as a reply and I will treat it as such (see Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Trapani, 40 id. 653, Decision No. 14,576).  However, 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).  In addition, §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified. Petitioner’s reply adds assertions that should have been in the petition and was not verified in violation of §275.5.  Therefore, I have not considered petitioner’s reply (see Appeal of a Student With a Disability, 46 Ed Dept Rep 102, Decision No. 15,454; Appeal of Nocerino, 40 id. 244, Decision No. 14,472; Appeal of Principio, 39 id. 11, Decision No. 14,157).

Petitioner also submitted a letter, to which she attached a copy of her “Response,” wherein she appears to address respondents’ memorandum of law.  I note that, pursuant to §276.4 of the Commissioner’s regulations, a reply memorandum of law may be submitted only with the prior permission of the Commissioner.  Similarly, 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 (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Petitioner did not request or receive permission to submit a reply memorandum of law or additional documentation.  Therefore, this submission has not been considered.

     Petitioner’s request for removal of all members of respondent board must be denied for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Here, none of the individual board members are named in the caption of the petition or in the notice of petition.  In addition, there is no indication that any individual board members were served with a copy of the notice of petition and petition.  Accordingly, petitioner’s request for removal of board members must be denied.

In addition, the appeal and application for removal must also be dismissed 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  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 Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  Petitioner commenced this appeal by service upon the clerk of the board on May 4, 2011 and on the individually named respondents between May 6, 2011 and May 20, 2011.  To the extent petitioner complains about respondents’ alleged failure to provide her son medical attention and notify her of his injury, the appeal is clearly untimely as petitioner’s son was injured on December 20, 2010, more than four months prior to the service of the petition.  To the extent petitioner complains about the alleged failure of respondent board to respond to her January 4, 2011 complaint in writing, the proceeding is also untimely.  Petitioner’s complaint arises out of conduct occurring on December 20, 2010, when her son was injured, and January 3, 2011, when she alleges that she requested, but was not provided, a copy of the district’s medical policies.  To support her claim, petitioner submitted the minutes from the January 11 and January 24, 2011 board meetings in which there is no indication that the complaint was addressed.  Yet, petitioner waited until May 2011 to commence this appeal, more than three months after she alleges that the board failed to act on her complaint.  Moreover, the record indicates that petitioner was provided with a copy of the district’s medical policies on January 6, 2011.  Finally, to the extent petitioner complains about the board’s alleged failure to respond to her March 21, 2011 letter, that letter raises the same claims that were raised in petitioner’s January 4, 2011 complaint.  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).  The conduct about which petitioner complains occurred more than 30 days prior to the service of the petition.  Accordingly, the appeal and application are untimely.

Even if the application and appeal were not dismissed on procedural grounds, they would be dismissed on the merits.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  On this record, petitioner has failed to establish facts sufficient to warrant the removal of the board and petitioner has failed to articulate any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education that respondents willfully disobeyed.

Similarly, with respect to petitioner’s appeal, her request for discipline is based on the district’s alleged failure to have medical emergency policies on file and to follow such policies.  On this record, I cannot conclude that respondents’ actions were arbitrary and capricious.  In any event, petitioner fails to identify which policies district staff violated.  I further note that the record indicates that petitioner was provided with a copy of the district’s medical policies on January 6, 2011.  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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Accordingly, no meaningful relief can be granted with respect to this claim, which must be dismissed as moot.

Further, I note that petitioner has established no basis upon which to grant the relief requested.  For example, to the extent petitioner requests that I discipline and/or reprimand members of the district’s staff, I have no authority to do so. It is the board of education, rather than the Commissioner of Education, which has authority to take disciplinary action against a school district employee (see Appeal of Johnston, 50 Ed Dept Rep, Decision No. 16,184; Appeal of Gonzalez, 48 id. 415, Decision No. 15,900).  Similarly, I lack the authority to reprimand district staff (Appeal of D.H., 41 Ed Dept Rep 142, Decision No. 14,640; Appeal of Angrisani and Hamilton, 41 id. 6, Decision No. 14,593) or to conduct an investigation as requested by petitioner.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

Petitioner also asks that I order the district to provide daily “small bus” transportation for her son to the Malone Central School District until he graduates from high school.  However, it is well settled that a board of education is not obligated to provide transportation to students enrolled in the public schools of another school district where the board of education offers an instructional program for such students (Appeal of C.C. and E.C., 48 Ed Dept Rep 528, Decision No. 15,938; Appeal of M.G. and J.G., 40 id. 336, Decision No. 14,491).  In this case, the record indicates that the district operates an elementary school program, and therefore is not obligated by statute to provide transportation to a public elementary school operated by another school district under the circumstances presented here.

Finally, respondents’ request for costs and attorneys’ fees must be denied.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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

THE APPEAL IS DISMISSED.

END OF FILE