Appeal of D.B. from action of the Board of Education of the Huntington Union Free School District regarding parent participation in school activities.

Decision No. 15,157

(December 24, 2004)

Guercio & Guercio, attorneys for respondent, Vanessa M. Sheehan and Barbara P. Aloe, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Huntington Union Free School District ("respondent") that her ex-husband may participate in their daughter�s school activities. The appeal must be dismissed.

During the 2003-2004 school year, petitioner�s eight-year-old daughter attended respondent�s Southdown Primary School. Petitioner and her husband were divorced in March 2001 and petitioner was awarded custody of the child with the father having weekend and evening visitation. The father has participated in his daughter�s school programs and activities. Petitioner has made repeated written and verbal requests to the district that the father not be permitted access to their daughter at school without her permission.

By letter dated October 31, 2001, respondent�s attorney first advised petitioner�s attorney that it would not ban the father from school activities. Petitioner continued to object to the father�s access to school activities involving her child. By letter dated October 17, 2003, the principal of Southdown Primary School advised petitioner that the school could not deny the father the right to participate in school-sponsored activities related to her daughter. Following a series of letters between petitioner�s and respondent�s attorneys, by letter dated February 5, 2004, respondent�s attorney confirmed the district�s position. This appeal ensued.

Petitioner contends that because she has sole custody of her child, respondent cannot allow the father access to her daughter during school hours without her permission.

Respondent maintains that its actions were lawful and had a rational basis. Further, respondent asserts that the Commissioner lacks jurisdiction over this matter, that the appeal is untimely, that petitioner has failed to prove that she has suffered injury and that petitioner failed to join the child�s father as a necessary party. Finally, respondent objects to petitioner�s reply.

Respondent objects to portions of petitioner�s reply. A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (8 NYCRR ��275.3 and 275.14; Appeal of O�Herron, 40 Ed Dept Rep 204, Decision No. 14,461; Appeals of Simpson, et al., 40 id. 5, Decision No. 14,402). Therefore, while I have reviewed petitioner�s reply, I have not considered the portion that contains new assertions that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent also argues that I lack jurisdiction to hear this appeal. However, �310 of the Education Law provides for an appeal to the Commissioner by any person aggrieved by any official act or decision of any officer or school authority. Respondent�s decision denying petitioner�s request to restrict her ex-husband�s access to her daughter while in school is such an act and is therefore properly before me (Appeal of Sans, 29 Ed Dept Rep 62, Decision No. 12,223). I likewise decline to dismiss the appeal for lack of standing.

An appeal to the Commissioner must be instituted 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). Respondent contends that the appeal is untimely because it was not commenced within 30 days from the October 31, 2001 letter sent to petitioner�s attorney. I do not agree. The 2001 communication was an advisory letter informing petitioner�s attorney that a more explicit court order would be needed before respondent would bar the father from school.

Two years later, petitioner requested that the school deny her ex-husband access to their daughter at school. She began with the principal of her child�s school. An exchange of letters between petitioner�s and respondent�s attorneys ensued. Petitioner finally wrote to respondent on January 20, 2004 asking for a determination of the issue. She received a response from respondent� s attorney by letter dated February 5, 2004 informing petitioner that the district, "will not prohibit a parent from participating in his or her child�s everyday schooling and school activities unless the District is provided with a court order expressly setting forth this limitation." Therefore, I find this appeal which was commenced on March 5, 2004, to be timely (see, Appeal of a Student with a Disability and his Sister, 42 Ed Dept Rep 199, Decision No. 14,821).

The appeal, however, must be dismissed for failure to join the father as a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Hoffman, 43 Ed Dept Rep 160, Decision No. 14,953; Appeal of Monahan, 42 id. 206, Decision No. 14,824; Appeal of J.W. and C.W., 41 id. 106, Decision No. 14,629). Joinder requires that an individual be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Hoffman, supra; Appeal of Monahan, supra). If I were to decide the appeal in petitioner�s favor, the rights of the child�s father would be adversely affected, in that he could be barred from access to his daughter�s activities and programs at her school. Accordingly, he is a necessary party to this appeal and should have been named and served with a copy of the notice and petition. Since petitioner failed to join the father as a party, the appeal must be dismissed.

Even if this appeal were not dismissed on joinder grounds, it would be dismissed on the merits. As respondent accurately notes, the divorce decree does not expressly limit the father�s participation in school activities and programs during the school day. Absent such an express limitation, I cannot conclude that respondent�s action was arbitrary or capricious (See Appeal of Sans, supra).

THE APPEAL IS DISMISSED.

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