Appeal of ANDREW D. BROCKWAY from action of the Board of Education of the Beekmantown Central School District regarding access to district property.

Decision No. 18,218

(December 13, 2022)

The Law Office of Anthony J. Brock, attorneys for respondent, Anthony J. Brock, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the extension of a resolution adopted by the Beekmantown Central School District (“respondent”) banning him from district property and imposing conditions upon his speech.  The appeal must be sustained in part.

Petitioner served as a member of the board from 2013-2019.  The record reflects that he was a persistent critic of the superintendent and other colleagues on the board.

During a board meeting on January 8, 2019, petitioner cursed at, and physically intimidated, the superintendent.  Petitioner also suggested that the superintendent had an affair with a district employee.  Petitioner was thereafter arrested and charged with menacing and harassment in the Town of Beekmantown Justice Court.  The court issued a temporary order of protection that directed petitioner to refrain from contacting the superintendent.  The order of protection expired in July 2019 and the criminal charges were eventually dismissed.

On January 30, 2019, petitioner resigned from his board position. Respondent thereafter sought an order removing petitioner from office under Education Law § 306, which was denied as moot (Application of the Bd. of Educ. of the Beekmantown Cent. Sch. Dist., 59 Ed Dept Rep, Decision No. 17,718).

In a determination dated February 26, 2019, respondent concluded that petitioner’s accusation of infidelity during the January 8, 2019 board meeting constituted harassment on the basis of sex.  Specifically, respondent found that the comment “potentially created a hostile work environment” under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 (“Title IX decision”).  As a remedy for this violation, respondent imposed two conditions.  First, petitioner was “directed not to have any further contact with [the] Superintendent” or the employee whom he accused of having an affair.  In this respect, respondent observed that “it is the Board’s position that there should be no reason for [petitioner] to have further contact with [these individuals] in their capacity as employees of the District.”  Second, respondent prohibited petitioner from accessing school property through June 30, 2021 absent prior written permission from the board president.  Finally, the board forbade petitioner from “engag[ing] in any action that could be construed as retaliatory” against district employees.

Thereafter, petitioner made public statements, as further described below, that respondent characterizes as “retaliation” or violations of its Title IX decision.  The superintendent alleges that petitioner: 

• “distributed audio recordings” on social media in spring 2019 repeating the infidelity accusation;
• emailed the superintendent in a “harassing” manner in November 2019;
• “threaten[ed] [a] lawsuit … regarding the reopening of schools during COVID” in August 2020;
• published the superintendent’s children’s education status during a district event broadcast on social media; and
• “created Facebook posts designed to elicite [sic] public support for” his campaign for a board position[1] and to articulate his view that tenure should be denied to the employee who was the target of his infidelity claim.[2]

On June 22, 2021, respondent “extended [its] no-contact directive through June 30, 2023” based upon the above communications, which it characterized as “failure to comply with the directives contained” in the Title IX decision.  This appeal ensued.

Petitioner argues that the board’s action in barring him from district property without prior written permission “does not reasonably relate to any conduct [he] … engaged in during the past two years,” and that the current prohibition is “not reasonable or narrow in scope.”  He also claims that he has not “directly communicated” with either the superintendent or employee since February 2019, and that he has a First Amendment right to “criticize[] the actions of the Board and of the Superintendent on social media.”  Petitioner requests a determination that the board’s 2019 order and the 2021 extension thereof be declared “null and void.”

Respondent asserts that petitioner’s appeal is untimely, that petitioner has failed to carry his burden of proving actual harm, and that a continued ban from district property is reasonable given petitioner’s conduct.

With respect to timeliness, 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).  Respondent extended the conditions of its 2019 order on June 22, 2021 and informed petitioner thereof by letter dated June 30, 2021.  Petitioner’s affidavit of service indicates that the petition was served on July 26, 2021.  Thus, while any challenge to the 2019 order is time-barred, I find that petitioner’s challenge to the 2021 extension is timely.

Additionally, I must address the scope of my review in this appeal.  The Commissioner has previously declined to exercise jurisdiction over discrimination claims, including those arising under Title VII (Appeal of Moss and Sealy, 61 Ed Dept Rep, Decision No. 18,001, Judgment dismissing pet to rev, Matter of Moss v New York State Educ. Dept. et al., Sup Ct, Albany County [Ferreira, J.], May 16, 2022) and Title IX (Appeal of J.H. and R.H., 57 Ed Dept Rep, Decision No. 17,317; Appeal of Berman, 46 id. 64, Decision No. 15,442).  Thus, I decline to review the merits of respondent’s finding of unlawful discrimination.    

Turning to the merits, the extension of the conditions imposed upon petitioner do not reasonably relate to any violation of Title VII or Title IX and must be annulled.  With respect to petitioner’s ban from district property, local school boards “exercise ultimate authority for access to students, school buildings and school property generally” (Matter of Lloyd v Grella, 83 NY2d 537, 547 [1994], rearg denied 83 NY2d 1001 [1994]).  School boards may impose reasonable restrictions on individuals’ access thereto (compare Appeal of Anonymous, 48 Ed Dept Rep 503, Decision No. 15,931 [reasonable restrictions upheld] and Appeal of Anonymous, 44 id. 260, Decision No. 15,167 [same] with Appeal of Anonymous, 48 id. 266, Decision No. 15,855 [“total ban” for indefinite period of time annulled]).  

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).

As indicated above, the actions that supported the February 2019 order banning petitioner from accessing district property were severe.  Petitioner physically intimidated the superintendent, conduct that resulted in his arrest and the filing of criminal charges.  This was a serious breach of his duties as a board member; had he not resigned, such conduct would likely have supported his removal from office (see Application of Gabryel, 44 Ed Dept Rep 235, Decision No. 15,158; Application of Lilly, 43 id. 459, Decision No. 15,050; Application of Kozak, 34 id. 501, Decision No. 13,396).  

However, there is insufficient evidence on this record that petitioner remains a threat to district employees or property such that further extension of the order is justified.  While respondent alleges that petitioner has subsequently engaged in crude or insensitive speech via social media and email, it does not allege that he has continued to engage in physical or verbal harassment comparable to the acts that gave rise to the Title IX decision.  Additionally, respondent has not explained one of the more serious allegations—that petitioner published information regarding the superintendent’s children’s education status—in any level of detail.  Therefore, on this record, I cannot uphold an extension of the prohibition on petitioner’s access to district property.

Similarly, respondent’s “no-contact” order cannot be maintained at this juncture.  In February 2019, petitioner was directed to refrain from communicating with the superintendent and the employee “in their capacit[ies] as employees of the [d]istrict.”[3]  It further prohibited him from engaging in “retaliation”—the label respondent has attached to all petitioner’s subsequent communications regardless of their form, intended audience, or content.

Respondent appears to be using the “no-contact” order to shield itself from petitioner’s speech, even where such speech may be protected by the First Amendment (Tinker v Des Moines Ind. Community School Dist., 393 US 503, 509 [1969] [for “school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid … discomfort and unpleasantness ….”]).  For example, petitioner’s alleged complaints and threat to file a lawsuit regarding school reopening are likely protected by the First Amendment (see McBreairty v School Bd. of RSU 22, ___ F Supp 3d ___, 2022 WL 2835458, at *8 [D Me July 20, 2022] [“While (a member of the public’s) behavior might be … insolent or cheeky …, it is also expression that would likely be protected by the First Amendment”]; Sprau v Coughlin, 997 F Supp 390, 393 [WD NY 1998] [inmate’s threat to file a complaint constituted protected speech for purposes of a First Amendment retaliation claim]; see generally Marshall v Amuso, 571 F Supp 3d 412, 426 [ED Pa 2021]).  Under these circumstances, I find that a total prohibition on communication with the superintendent—the chief executive officer of the school district (Education Law §§ 1711 [2] [a]; 2507) and a school officer (Education Law § 2 [13])—to be inconsistent with the First Amendment.[4]  Thus, respondent’s extension of the “no-contact” order must be annulled. 

This decision should not be construed as license for petitioner to harass district officers or employees.  Should petitioner engage in threatening or abusive conduct, respondent may take all measures necessary to protect its members, school officials, school employees, and the public.  In that respect, respondent retains the ability to impose reasonable time, place, and manner restrictions on petitioner’s communications and the conditions under which it permits public participation at board meetings.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, as of the date of this decision, the conditions imposed upon petitioner in respondent’s June 22, 2021 determination are annulled.

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