Decision No. 12,789

(August 27, 1992)

SOBOL, Commissioner.--Petitioner appeals from the refusal of the respondent board of education to initiate disciplinary actions against Superintendent Casey for allegedly lying under oath. The appeal must be dismissed.

While the petition in this matter is rambling and disjointed, petitioner seems to assert that Superintendent Casey should be dismissed because he lied in an answer and amended answer, which were submitted as part of a proceeding instituted pursuant to Article 78 of the Civil Practice Law and Rules in Supreme Court, Kings County. Specifically, petitioner contends that Superintendent Casey verified those pleadings on a date prior to the date of the pleading and that such conduct constituted lying under oath. Petitioner also maintains that Superintendent Casey asserted in the answer and amended answer that he did not know if certain statements contained in the petition filed in the court proceeding were true. Petitioner contends that Superintendent Casey's failure to admit the statements in question is lying under oath because information regarding those statements is available in the records of the school district. Petitioner instituted this appeal and seeks an order directing respondent to bring charges against and remove Superintendent Casey from his position.

Before reviewing the merits of this appeal, it is necessary to address a procedural issue. My review of the record reveals that petitioner's reply papers contain numerous new exhibits and allegations which were not previously set forth in the petition and which do not respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Brousseau, 31 Ed Dept Rep 155). Therefore, I will not consider those portions of the reply that raise new matters.

Concerning the merits, a board of education has broad discretion in determining whether disciplinary action against an employee is warranted (Appeal of Young, 26 Ed Dept Rep 152; Matter of Fakler, 25 id. 436). A board of education must, however, have a reasonable basis for its conclusion not to proceed with disciplinary action (Matter of Bartlett, 19 Ed Dept Rep 412). In this case, the issue of whether Superintendent Casey's pre-dated verification of the pleadings in question was improper was reviewed and upheld in an order of the Appellate Division, Second Department. Based upon that order and its own investigation, respondent determined that there was no basis for instituting disciplinary proceedings against Superintendent Casey.

Other than petitioner's assertions to the contrary, there is no evidence before me to support petitioner's contention that Superintendent Casey lied under oath when he refused to admit certain statements in the court proceeding. I find no reason to conclude that respondent abused its discretion in refusing to find probable cause for disciplinary charges under these facts.

I have reviewed petitioner's other contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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