Appeal of the R.T. from actions of the Board of Trustees of the Freeport Memorial Library, Kenneth Bellafiore, Library Director, and Ellen Kelly, Library Board President, regarding a suspension of library access.

Decision No. 17,060

(March 8, 2017)

Mark W. Greenfest, Esq., attorney for petitioner

Randolph A. Volkell, Esq., attorney for respondents

ELIA, Commissioner.--Petitioner brings this appeal pursuant to both Education Law §§306 and 310.  Petitioner, an adult, appeals a one-year suspension of access to services from the Freeport Memorial Library (the “Library”) by actions of its board of trustees; Mr. Kenneth Bellafiore, the Library’s Director; and Ms. Ellen Kelly, President of the Library’s board of trustees (collectively, “respondents”).  The appeal must be dismissed.

I take judicial notice from the records of the State Education Department that the Library is a school district public library, which is an education corporation chartered by the New York State Board of Regents (“Regents”).  By letter dated October 29, 2015, petitioner was informed that his library use privileges were being suspended for a period of one year due to repeated violations of the Library’s Code of Conduct policy (the “Code”).  In its letter, the Library alleged that over a period of eight separate days, petitioner violated the Code by using his cellular telephone, speaking in an inappropriate manner to Library staff, and not vacating a computer when directed to at closing time.  The letter reminded petitioner that he previously received a one-month suspension for Code violations and if he returned to the Library prior to the conclusion of the one-year suspension, he will be deemed a trespasser and the police will be contacted. 

Petitioner then appealed the determination administratively with the Library’s board of trustees.  The appeal was dismissed by letter dated November 16, 2015.  The Library wrote that the use of a library “is a privilege, not a right” and the Library’s board must consider the conduct of one individual in light of how it affects other Library patrons.  The letter states that since January 2014 petitioner was “cited in approximately 17 different incidents reported in writing by approximately 12 separate members of the [Library’s] staff.”  This determination claimed petitioner interfered with services to other Library patrons, was verbally abusive, improperly used his cellular telephone, refused to vacate a computer at closing time, and removed supplies from staff storage without permission.  Thus, the Library asserted it found petitioner violated the Code willfully even after repeated warnings, and upheld the one-year suspension.  The instant appeal ensued.  On December 28, 2015, petitioner’s request for a stay was denied. 

Petitioner asserts that the final decision of the Library to suspend him for one year is “draconian” and should be reversed.  Petitioner asks that I conduct an investigation into the Library, its trustees and administrators and then suspend and/or remove them from office.  Additionally, petitioner requests I appoint an “attorney hearing officer to hear evidence in a full evidentiary hearing” and review this matter de novo.  Petitioner argues that the allegations that he violated the Code are too vague “as a matter of fact, as a matter of law,” for him to properly respond to, and he specifically notes an alleged failure of the Library to provide him with a “bill of particulars.”  However, inter alia, petitioner denies the allegations of Code violations by the Library or proffers alternative explanations for his conduct, such as, having “sensitive files” on the computer at closing time, that he used his cellphone but in areas designated for such use, or that certain Library staff have personal grievances against petitioner.  Within annexed documents to the petition, petitioner also argues that the suspension by the Library constitutes a violation of his rights under the United States and New York Constitutions including due process and equal protection.

Respondents argue that petitioner fails to state a claim upon which relief can be granted pursuant to Education Law §§306 or 310.  Respondents assert that the Library trustees have authority under Education Law §262 to establish a Code of Conduct and to exclude those persons who willfully violate such rules.  Respondents provide evidence in the form of documents written by Library staff detailing alleged incidents of Code violations involving petitioner.  Respondents state that petitioner’s administrative appeal was allowed to go forward even though untimely commenced, and they carefully evaluated the evidence even without holding a hearing.  Respondents assert that that Library’s decision to suspend petitioner was lawful and justified, in light of petitioner’s long-standing pattern of “disruptive and abusive behavior.” 

During the pendency of this instant appeal, both petitioner and respondents submitted numerous documents, with varying degrees of formality and conformity with the Commissioner’s regulations.  Such was the number of documents that, by letter dated March 15, 2016, my Office of Counsel took the unusual step of replying to the parties’ inquiries regarding the composition of the record in the instant appeal and inquiring whether there was any remaining necessity for their continued submissions of evidence and arguments.  As explained in the March 15 letter, and more fully below, the basis for the Commissioner’s acceptance of replies, memoranda of law, and additional documentary submissions are laid out under the Commissioner’s regulations. 

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, 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. 

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).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). 

A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  In this appeal, neither party submitted a timely memorandum of law.  With this in mind, I have reviewed the letter-memoranda submitted by respondent dated January 26, 2016; by petitioner dated February 23, 2016; by respondent dated March 18, 2016; and by petitioner dated March 21, 2016.  I will accept these submissions because they each contain some relevant information to the claims originally raised in the petition and answer.  However, I have not considered those portions containing new allegations, claims or exhibits that are not arguments of law or that contain additional factual information known to petitioner at the time he submitted the petition.

Petitioner’s application for removal of the Library Director and the Board of Trustees pursuant to Education Law §306 must be dismissed for lack of subject matter jurisdiction.  Education Law §306 authorizes the Commissioner of Education to remove members of a board of education, superintendents and other school officers for willful violations of law or neglect of duty.  A public library trustee or a Library Director is not a “school officer” as defined in Education Law §2(13),[1] and they are not among the officers listed in §306.  Therefore, they are not subject to removal by the Commissioner pursuant to Education Law §306.[2]

Education Law §310 states in part that the Commissioner is “authorized and required to examine and decide” a petition “made in consequence of any action ... [b]y any trustees of any school library concerning such library, or the books therein, or the use of such books” (emphasis added) (see Education Law §310[5]).  I find that in the specific case of a school district public library, such as respondent Library, the Commissioner of Education does have jurisdiction to hear an appeal of a determination of the discipline imposed upon a patron who allegedly violated a library’s code of conduct or rules.  Therefore, petitioner’s appeal of the Library’s one-year suspension of his library use privileges is properly before me.

Petitioner also requests an investigation.  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).  Moreover, petitioner has repeatedly requested that I hold an oral argument in this matter.  While oral argument may be granted at the discretion of the Commissioner, "[a]ll evidentiary material [must] be presented by affidavit or by exhibits. No testimony is taken and no transcript of oral argument [is] made" (8 NYCRR §276.2[d]).  The burden is on petitioners to allege and prove facts upon which relief may be granted, not on respondents to rebut conclusory allegations set forth in the petition (Application of Wilson, 41 Ed Dept Rep 196, Decision No. 14,663).  Therefore, I will not order an investigation into the actions of the Library or its trustees and administrators as they relate to the instant matter, or hold an oral argument in the instant appeal.

The appeal must be dismissed as moot.  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).  Petitioner’s one-year suspension from the Library terminated on October 29, 2016.  In light of that fact, the matter is academic and must be dismissed as moot.

Further, insofar as petitioner is arguing that the Library has violated his constitutional rights to due process and equal protection under the United States and New York Constitutions, either through the suspension of his library use privileges or through the procedures the Library used to adjudicate his alleged violations of its Code, petitioner’s appeal must be dismissed.  An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  Federal courts in other jurisdictions have ruled that a public library is a limited public forum and library trustees may establish rules consistent with the purpose of a public library that have the effect of limiting public access to information without violating the First Amendment (see Kreimer v. Bureau of Police for the Town of Morristown, 958 F2d 1242; Neinast v. Board of Trustees of Columbus Metropolitan Library, et al., 190 FSupp2d 1040, aff’d 346 F3d 585, cert den 541 U.S. 990).  At least one federal court has upheld a suspension of library privileges based on a violation of library rules designed to prevent disruption of the use of the library by other patrons or staff (see Tronsen v. Toledo-Lucas County Public Library, 2008 WL 2622939 [N.D. Ohio 2008]).  However, the parties herein have not cited to any case in the Second Circuit, or in the New York courts, addressing the extent of a party’s due process or equal protection rights with regard to the denial of library privileges, and I can find none.  However, in this case, respondents provided petitioner with the opportunity to present his side of the story through an appeal, so it is arguable that he has been offered the process he is due (see Goss v. Lopez, 419 U.S. 565; Neinast v. Board of Trustees of the Columbus Metropolitan Library, 346 F3d 585, 597-598; cf. Miller v. Northwest Region Library Board, 348 FSupp2d 563 [plaintiff stated claim of procedural due process violation where no appeal or other avenue for explaining himself was provided]).  However, those novel constitutional issues are for the courts to decide, and I decline to address them in an appeal under Education Law §310.

Nevertheless, even if the appeal were not dismissed on procedural grounds, as discussed above, I would dismiss petitioner’s claims relating to the penalty imposed upon him on the merits.  The crux of petitioner's remaining claims are that the Library’s determination to suspend his library use privileges for one year was excessive and constituted a penalty against petitioner beyond the scope of authority authorized by law. 

I find that, on this record, the Library’s imposition of a one-year suspension of petitioner’s library use privileges for various violations of the Library’s Code of Conduct was reasonable.  Education Law §262 states, in relevant part, that:

Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully violates such rules . . .  (emphasis added).

Respondents had authority under Education Law §262 to impose a Code of Conduct on library users and to exclude petitioner for violating it. 

The record indicates that there is disagreement between the Library and petitioner over the degree to which petitioner’s alleged violations of the Code were intentional, actually occurred, or were disruptive to the Library’s operations.   The parities also dispute the personal motivation of the Library’s staff when making their reports.  In the petition, petitioner states that he refused to shut down his computer at closing time when instructed to but insists he had good cause to do so.  Petitioner also denies that he spoke to the Library staff in an inappropriate manner and used his cellular telephone inappropriately.  Additionally, in the November 16, 2015 letter from the Library president (in addition to the above allegations), the president also claims that petitioner “removed library supplies from a staff storage closet without authorization.”  Contained within the Library’s “Verified Answer” are numerous incident reports, apparently drafted by Library staff contemporaneously with petitioner’s alleged code violations. 

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). 

In this appeal, petitioner has made several conclusory allegations but offered no evidence of any irregularities in Library operations or offered any proof whatsoever, such as supporting affidavits, from other Library patrons supporting his contentions as to the details of the events in question.  As a result, petitioner has failed to carry his burden of proof and to overcome the persuasive nature of the reports submitted by the Library - made in the course of regular business.  On the factual record presented, there is no basis for me to find in petitioner’s favor.

On the facts of this case, I cannot find that the Library acted in an arbitrary and capricious manner in suspending petitioner’s library privileges.  Petitioner engaged in disruptive behavior that violated the Library’s Code on several occasions, despite being put on notice from a prior suspension of privileges that he needed to cease his disruptive behavior.  He was provided with an additional opportunity to have his one-year suspension reconsidered by the Library’s board of trustees.  I cannot find that a one-year suspension of library use privileges is excessive considering the numerous Code violations documented against petitioner, the responsibility that respondents have to the other patrons of the Library and to maintain a safe and orderly environment for the Library’s staff and the protection of its property, and that this one-year suspension was not petitioner’s first suspension from use of the Library. 

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

THE APPEAL IS DISMISSED.

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