* Subsequent History: Matter of Moss v New York State Educ. Dept. et al.; Supreme Court, Albany County (Ferreira, J.); Judgment dismissing petition to review; May 16, 2022. *

Appeal of WILIAM KING MOSS III and DAWN MARIE SEALY from action of the Board of Education of the Brentwood Union Free School District; Superintendent Richard Loeschner; trustees Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri 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. 18,001

(June 9, 2021)

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

ROSA., Commissioner.--Petitioners appeal from action of the Board of Education of the Brentwood Union Free School District (“respondent board”); Richard Loeschner as superintendent; 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 hiring of appointees Ashley Dunn, Laura Haggerty, Andrea Zuart and Jaime Tartaro.  Petitioners additionally seek removal of the superintendent and trustees from office.  The appeal must be dismissed, and the application must be denied.

Sometime prior to the events described in this appeal, respondent board excessed several teachers, including Ms. Dunn, Ms. Haggerty, and Ms. Zuart.  In July 2020, respondent board posted five special education teaching positions, with applications due by July 24, 2020.  One position served grades 1-6, three served grades 7-12 (in the content areas of social studies, mathematics, and English language arts), and a fifth served as a resource room content specialist.  Petitioner Sealy applied to the grades 1-6 and resource room positions “on or before the July 24, 2020 deadline.”

At an October 8, 2020 board meeting, respondent board appointed Ms. Dunn, Ms. Haggerty, and Ms. Zuart to three of the special education teaching positions.  Ms. Haggerty was appointed to the grade 1-6 position, one of the positions to which petitioner Sealy applied.  The board minutes from this meeting describe these three appointments as:  “Excessed Teachers – Recalled – Change of Tenure Area.”  The minutes further reflect that respondent board appointed Ms. Tartaro to one of the posted positions under the heading “Probationary Contract.”[1]  This appeal ensued.

Petitioners argue that respondent discriminated against petitioner Sealy on the basis of race when it hired the four appointees identified above.  Petitioners assert that the four appointees are white and less qualified than petitioner Sealy, who is African American.  Petitioners also maintain that none of the appointees applied for their positions, which violated board policy.  Petitioners further argue that the board’s consideration of less qualified internal candidates violated board policy.  Petitioners additionally contend that Ms. Zuart and Ms. Tartaro lack appropriate certification for the positions to which they were appointed.  Petitioners allege that respondent board has, for years, engaged in a pattern of discrimination against African Americans that have deprived African Americans of employment opportunities.  For relief, petitioners request the removal of all trustees and the superintendent; reversal of the appointments of the “excessed elementary teachers to special education” positions; orders directing the district to comply with various legal requirements; and appointment of a distinguished educator to monitor the hiring of teachers and administrators.

Respondents argue that the appeal must be dismissed, in part, as untimely, and for lack of proper service.  Respondents further contend that certain claims must be dismissed for lack of standing.  Respondents admit to errors in the hiring process but maintain that there is no evidence that any of these errors were motivated by racial or discriminatory animus.  Respondents further assert that petitioners have not proved that these errors are sufficient to warrant the removal of the superintendent and board members.  Finally, respondents request that the Commissioner certify that they acted in good faith in accordance with Education Law § 3811. 

First, I must address the procedural issues.  Respondents contend that the appeal must be dismissed for improper service.  Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR § 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Effective April 7, 2020, during the time period of any movement restrictions or school closures directed by the Governor pursuant to an Executive Order during the COVID-19 crisis, a petitioner may effectuate alternative service on a school district in the following manner:  

(1) by mailing the petition, notice of petition and all supporting papers by first class mail in an envelope bearing the legend “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to the attention of the district clerk and superintendent of schools ...; and (2) on the same date as the mailing, emailing the petition, notice of petition and all supporting papers under the subject heading “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to both the district clerk and superintendent of schools ....  Service shall be deemed complete upon completion of both steps identified above (8 NYCRR 275.8 [f]).

Respondents argue that this provision does not apply because, at the time the appeal was commenced, the district was “open” and there were no movement restrictions or school closures that would have impacted petitioners’ ability to effectuate personal service.  

Under the circumstances of this appeal, I decline to dismiss the appeal for lack of personal service.  The Board of Regents adopted the version of 8 NYCRR 275.8 (f) applicable here in April 2020, shortly after the Governor declared a State disaster emergency for the entire State of New York on March 7, 2020.  Given the nature of the restrictions issued by the Governor in March and April 2020 – which included closing schools, directing non-essential personnel to work from home, and restricting gatherings of individuals – the regulation referred to “movement restrictions or school closures.”  The overall intent of the regulatory change, however, was “to address numerous issues resulting from the interruptions caused by the COVID-19 crisis.”  Therefore, I find that it is in the spirit of the amendment to permit alternative service under the circumstances of this appeal, and I decline to dismiss the appeal on that basis.[2]

Respondents also argue that the appeal must 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The record indicates that the acts of which petitioners complain occurred at a public meeting of the board held on October 8, 2020.  Although petitioners would ordinarily be required to commence the appeal by November 7, 2020, that day was a Saturday.  Where, as here, the 30-day time period in which to commence an appeal ends on a Saturday, the petition may be served on the following business day (see 8 NYCRR 275.8 [a]).  Thus, petitioners’ service of the petition on November 8, 2020 was within the 30-day time limitation.

In the petition, however, petitioners raise several allegations that occurred months, and in some cases years, prior to October 8, 2020.  To the extent petitioners seek redress for such allegations, they are untimely and will not be addressed herein (see Appeal of Moss, 60 Ed Dept Rep, Decision No. 17,952; Appeal of Cea, 58 id., Decision No. 17,483).

I must also address the threshold issue of standing.  An individual may not maintain an appeal pursuant to Education Law § 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

Petitioners’ primary argument with respect to Education Law § 310 is that respondents discriminated against petitioner Sealy as an African American when respondents appointed four less qualified white teachers without following the board’s hiring process.  With respect to petitioner Moss, there is no indication that he applied to any of these positions, nor has he alleged or proven in the petition that he would have been qualified for such positions.  Petitioner Sealy, by contrast, applied to the grades 1-6 and resource room positions that were ultimately awarded to Ms. Haggerty and Ms. Zuart.[3]  While petitioner Moss lacks standing to assert the rights of others who applied for the special education teaching positions, petitioner Sealy has standing to with respect to the positions for which she applied.  Therefore, I find that petitioner Moss lacks standing to request that I “reverse” respondents’ appointments of Ms. Haggerty, Ms. Zuart, Ms. Dunn or Ms. Tartaro to their respective positions.

With respect to petitioners’ request for removal of the superintendent and trustees from office pursuant to Education Law § 306, however, both petitioners have standing to bring such claims as district residents and taxpayers (Appeal of Moss, 58 Ed Dept Rep, Decision No. 17,602; Application of Eisenkraft, 38 id. 553, Decision No. 14,092).  Therefore, the claims pertaining to petitioners’ application for removal are addressed herein.

I must also dismiss petitioners’ claims of employment discrimination as outside the scope of an appeal to the Commissioner pursuant to Education Law § 310 (see e.g. Appeal of T.A., 58 Ed Dept Rep, Decision No. 17,443 [appeal to Commissioner not appropriate forum to adjudicate disparate impact claims arising under Title VII of Civil Rights Act of 1964]; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879 [appeal to Commissioner under Education Law § 310 not proper forum for alleged violation of Title VII]).  The Human Rights Law contains a comprehensive scheme for the investigation and enforcement of human rights violations through the Division of Human Rights (“DHR”) (see Executive Law § 295).  Accordingly, it would be contrary to this structure for the Commissioner to assume jurisdiction over such claims.

Petitioners are correct that the Commissioner has opined upon claims of discrimination in prior appeals (e.g., Appeal of D.B., 49 Ed Dept Rep 319, Decision No. 16,041).  This, however, does not affect my conclusion that petitioners’ claims here — such as the disparate impact of hiring practices like “word of mouth” referrals – are more appropriately resolved by a fair employment practice agency or a court of competent jurisdiction (see e.g. Grant v Bethlehem Steel Corp., 635 F2d 1007 [2d Cir 1980]).

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 the burden of establishing the facts upon which petitioner 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).

Petitioners maintain that respondent board violated board policy 9240 by hiring four previously excessed teachers without following its own hiring procedures.  Board policy 9240 states that the selection of “employees is made pursuant to the District’s standard screening process, interview process, reference check process, collective bargaining agreements, Civil Service Laws, and other legal requirements.”  Respondents admit that appointees Haggerty, Zuart, and Tartaro “did not apply in response to” the positions posted “prior to the deadline in July 2020.”  However, it is unclear from respondents’ admission whether the appointees did not apply to these positions at all, or whether they did not apply prior to the July 2020 deadline.  Other than this ambiguity, petitioners present no evidence showing that respondents further violated the hiring process as outlined in board policy 9240.  Nevertheless, to the extent that respondents may not have followed their own process when hiring the appointees, I remind respondents to comply with all aspects of board policy 9240 with respect to recruitment.    

Petitioners also maintain that respondent board violated board policy 9110 by failing to give “full consideration” of petitioner Sealy as a candidate and violated board policy 9240 by failing to “make a reasonable effort to interview” petitioner Sealy for the July 2020 positions.  Board policy 9110 indicates that “[c]andidates for open positions ... will be given full consideration and evaluated on the basis of education, experience and ability, to determine fitness to perform the duties of the position.”  Additionally, board policy 9240 states that “the Superintendent, or his/her designee, shall make a reasonable effort to interview all qualified applicants who submit a resume in accordance with the procedures set forth in the job posting.”[4]

Respondents acknowledge that petitioner Sealy was not interviewed for the positions to which she applied.  However, respondents maintain that meeting the necessary qualifications for a particular position does not guarantee an interview; furthermore, respondents contend that teaching positions “often draw hundreds of applicants and it would be untenable for the School District to interview all qualified applicants.”  Here, petitioner has not met his burden of proving that respondents failed to follow board policy when it elected not to interview petitioner Sealy.  In any event, as the Commissioner has previously stated, “the mere fact th[at] petitioner may have been qualified for the position[s] does not give h[er] a legal entitlement to the position[s] based upon respondents’ failure to follow a procedure outlined in board policy” (Application and Appeal of Moss, 58 Ed Dept Rep, Decision No. 17,602).  Therefore, I find that petitioner Sealy has failed to meet her burden to show that respondents violated board policy.

Petitioner Sealy has also failed to prove that respondents’ election not to interview or hire her was motivated by unlawful discrimination.  To the extent she claims that the failure to hire her was the result of the disparate impact of respondents’ hiring policies, as explained above, this is an inappropriate forum to adjudicate such claims.  To the extent she alleges that respondents engaged in intentional discrimination, she submits no proof thereof.

With respect to petitioners’ request for removal, the Commissioner of Education may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner (Education Law § 306 [1]; see Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  To be considered willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose (see Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Nett and Raby, 45 id. 259, Decision No. 15,315).

Here, as respondent admits, neither Ms. Zuart nor Ms. Tartaro were certified as special education teachers at the time of their appointment to such positions in October 2020.[5]  Respondents contend that this error resulted from a “lapse in the School District’s Human Resources Department vetting process, which did not involve the Superintendent or any of the School Board members.”  Furthermore, respondents indicate that, when they learned of the error, the teachers were “immediately removed” from their positions and “submitted letters of resignation regarding their special education teaching positions.”  Respondents also maintain that the superintendent and board have “taken immediate actions to improve the certification vetting process” to prevent this error from occurring again.[6]

The superintendent and trustees are not subject to removal for this error.  At best, respondents’ actions were negligent, and mere negligence on the part of a school officer is not enough to warrant removal (Appeal of Gates, et al., 57 Ed Dept Rep, Decision No. 17,188; Appeal of Schofield, 34 id. 143, Decision No. 13,263).  Therefore, petitioners’ application for removal must be denied.

Additionally, to the extent that petitioners allege that violations of board policy are sufficient to warrant respondents’ removal, it is well settled that, even if proven, violation of a board’s bylaws or policies alone is not a sufficient basis for removal of a member of a board of education in a proceeding pursuant to Education Law § 306 (Appeal of Moss, 60 Ed Dept Rep, Decision No. 17,952; Application of Malgieri, et al., 52 id., Decision No. 16,482).

Finally, the superintendent and trustees have requested that I certify that they acted in good faith in accordance with Education Law § 3811 (1). Such certification is solely for the purpose of authorizing the board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in the statute.  It is appropriate to issue such certification unless it is established on the record that the requesting board trustee(s) acted in bad faith (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Appeal of Berger, 56 id., Decision No. 16,996; Appeal of Fletcher and Ferguson, 55 id., Decision No. 16,901).  Since there has been no finding that the superintendent or trustees acted in bad faith, I hereby certify solely for the purpose of Education Law § 3811 (1) that the superintendent and trustees are entitled to a certificate of good faith.

I have considered petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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