Decision No. 12,904

(April 2, 1993)

Pat J. Trunzo, III, Esq., attorney for petitioner

Pelletreau & Pelletreau, Esqs., attorneys for respondents, Vanessa M. Sheehan, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the refusal of the Board of Education of the Springs Union Free School District to appoint him to either of two advisory committees of the board of education. Petitioner requests appointment to one of the advisory committees and requests that respondent Lisi, superintendent of schools, be ordered to apologize publicly and to cease making certain statements about him. The appeal is dismissed.

At the October 28, 1991 special meeting of the Board of Education of the Springs Union Free School District, the board selected community residents to two advisory committees, the "concept" and "construction" committees. The committees were to study the space and facilities problems of the district and to advise the board on possible solutions. Petitioner was not named to either of the committees.

On November 10, 1991, when petitioner learned that he was not selected, he asked a board member to explain. That board member responded that petitioner was not selected because board members believed that petitioner was interested in academic matters rather than facilities planning issues. On November 19, 1991, petitioner asked another board member to explain. Petitioner states that the second board member responded that petitioner was not selected because of "outside activities". The board member states he told petitioner another reason -- that petitioner was not selected because he did not work well in groups. On November 19, 1991, petitioner also asked respondent Lisi for the reason. Respondent Lisi advised petitioner that he was not chosen because it was the board's determination that he was not suited to serve on the committees. Respondent Lisi also told petitioner that a legislative aide had reported that petitioner had misrepresented himself to be principal of the Springs School and that petitioner taped these telephone conversations with the aide.

According to respondent Lisi, the legislative aide made those allegations in March or April 1991. The president of the board of education states that he also was advised by the legislative aide in March or April 1991 that petitioner had misrepresented himself to be principal of the Springs School. Respondent Lisi told the other board members of the legislative aide's allegations at that time.

On November 8, 1991, a member of one of the advisory committees asked respondent Lisi the reason for petitioner not being selected. Respondent Lisi stated that it was due to the allegations of the legislative aide.

Petitioner denies that he misrepresented himself to be principal of the Springs School to the legislative aide or that he taped his telephone conversations with the aide. The legislative aide in question also denies that petitioner misrepresented himself to be principal of the Springs School or that she told respondent Lisi or the president of the board of education that petitioner made such a misrepresentation. She also states that she did not advise respondent Lisi that petitioner taped his telephone conversations. Instead, the aide states that in the spring of 1991 she asked respondent Lisi and the president of the board of education whether petitioner had ever been a principal of a school. She also states that she advised respondent Lisi that she left a taped message on petitioner's telephone answering machine.

Petitioner claims that respondents unfairly denied him the opportunity to serve on the advisory committees based on false allegations and that respondents deprived him of a liberty interest without due process and equal treatment under the law by imposing a stigma that foreclosed opportunities to participate in public affairs in the community.

Respondents claim that petitioner's appeal should be dismissed based on a number of procedural grounds: untimeliness; failure to clearly set forth in the petition the basis for the relief sought; mootness; and inappropriate forum. In addition, respondents claim that petitioner has failed to establish that the board acted in an unfair manner when it did not select petitioner to be a member of one of the advisory committees.

Before reaching the merits, I must determine whether this appeal should be dismissed on procedural grounds. Respondents first contend that this appeal should be dismissed as untimely. Petitioner commenced this appeal on December 19, 1991. Petitioner is appealing from the decision of the board not to appoint him to an advisory committee, rendered on October 28, 1991. However, petitioner states that he first learned that he was not selected on November 10, 1991 and did not learn the reason for not being selected until November 19, 1991. Petitioner claims that the appeal is timely because he commenced the appeal within 30 days from the time that he learned he was aggrieved -- November 19, 1991.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner be instituted within 30 days from the making of the decision or the performance of the act complained of. However, I may excuse a delay for good cause shown, if the reasons are set forth in the petition (8 NYCRR 275.16). In this case, petitioner is appealing from respondent board's refusal to select him to an advisory committee, rendered on October 28, 1991. That decision was made known to petitioner on November 10th. This appeal was commenced on December 19, 1991, more than 30 days after that date. Petitioner does not set forth the reasons for the delay in his petition, but gives the reasons for the first time in his reply papers. Since the rule requires that the cause for delay be alleged in the petition and the petition is silent on the matter of the delay, the appeal must be dismissed as untimely (Appeal of Gmelch, 32 Ed Dept Rep 167; Appeal of the Board of Education of the Poughkeepsie City School District, 32 id. 315).

Respondents also contend that the petition is defective because it does not contain a clear and concise statement of the claim showing that petitioner is entitled to relief, as required by 8 NYCRR '275.10. I find that the petition adequately states petitioner's claims for relief and that respondents adequately addressed petitioner's allegations in the answer. As respondents were not prejudiced by petitioner's drafting, I will not dismiss the appeal for failure to set forth an adequate statement of claim (Appeal of Savastano, 32 Ed Dept Rep 114).

Petitioner requests that I order respondent board to appoint him to one of the advisory committees. The record indicates that those were temporary committees that concluded their work on March 3, 1992 -- about four months after coming into existence. The Commissioner will determine only matters which are in actual controversy and will not render a decision upon a matter which subsequent events have laid to rest (Appeal of Vitello, 32 Ed Dept Rep 218). Since the advisory committees in question are no longer in existence, the issue of petitioner's selection to those committees is moot.

Petitioner's constitutional claim is based on the belief that respondents deprived him of a liberty interest without due process and equal treatment under the law by imposing a stigma that foreclosed opportunities to participate in public affairs in the community. The U.S. Supreme Court has held that defamation alone does not constitute a protected liberty interest under the Constitution, absent impairment of a right or status previously recognized by state law (Paul v. Davis, 424 US 693 [1976]). As petitioner has not shown an impairment of a right or status previously recognized by state law, a protected liberty interest may not be at issue in this case. However, the Second Circuit has held that the meaning of Paul is not unambiguous. "One of the most disputed aspects of liberty in recent years is the degree to which the due process clauses protect the interest of an individual in his reputation." (Neu v. Corcoran, 869 F2d 662 [2d Cir. 1989], quoting R. Rotunda, J. Nowak & J. Young, Treatise on Constitutional Law '17.4, at 230 [1986]). Paul has been widely interpreted as holding that "stigma plus" is required to establish a constitutional deprivation, but it is not entirely clear what the plus is (Neu v. Corcoran, supra.). Therefore, petitioner raises unsettled constitutional issues. I have repeatedly held that an appeal before the Commissioner of Education is not a proper forum for litigating novel issues of constitutional law (Appeal of DeGroff, et al., 31 Ed Dept Rep 332, Appeal of DePasquale, 30 id. 361). Accordingly, I must dismiss petitioner's constitutional claim.

Even if I were not to dismiss this case on procedural grounds, I would dismiss it on the merits. In an appeal to the Commissioner of Education, it is the burden of the petitioner to establish facts upon which the claim for relief is founded (8 NYCRR 275.10, Appeal of Bach, 32 Ed Dept Rep 273, Appeal of Singh, 30 id. 284). In this case, petitioner provides insufficient evidence that the board of education acted arbitrarily or capriciously when it did not select him to an advisory committee. The reasons stated in affidavits by three board members for not selecting petitioner are unrelated to the incident involving the legislative aide. One states that she did not select petitioner because his interests centered on academic issues rather than facilities planning. Two other board members state that they did not select petitioner because petitioner lacks the requisite interpersonal skills. There is no evidence in the record as to the reasons of the two remaining board members. Accordingly, petitioner has not established that the board members based their decisions not to select him on allegations that they knew to be untrue.

In an appeal to the Commissioner of Education, the petitioner also bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Petitioner has failed to show that he has a legal or statutory right to a position on the advisory committees. It is clearly within the discretionary powers of the board of education to select the membership of its advisory committees. Petitioner has not established that the board abused its discretion in this matter.

THE APPEAL IS DISMISSED.

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