Appeal of CARL STIEFFENHOFER from actions of Donna Pieszala, President of the Board of Education of the Newfane Central School District, regarding a nomination and appointment to the Orleans-Niagara Board of Cooperative Educational Services.

Decision No. 15,846

(November 13, 2008)

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

Mills, Commissioner.--Petitioner, a member of the Board of Education of the Newfane Central School District ("board" or "board of education"), appeals certain actions taken by board president, Donna Pieszala (“respondent”).  The appeal must be dismissed.

On March 4, 2008, the board discussed nominations to a position on the Orleans-Niagara Board of Cooperative Educational Services (“BOCES”).  Petitioner alleges that he made a motion to nominate Anthony LaRose (“LaRose”) to the BOCES position but that his nomination did not get considered.  Petitioner further alleges that there was "immediate chaos" after his nomination and that ultimately respondent removed herself from presiding over the meeting to make a motion from the floor to nominate board vice-president, Gretchen DeWitt (“DeWitt”), to the position.  Petitioner alleges that respondent acted improperly by leaving her position as chairperson of the board to make a motion from the floor.  The board minutes indicate that respondent's motion failed "pending further information." 

On March 11, 2008, the board met in executive session and discussed nominations for the BOCES position.  Petitioner alleges that he nominated LaRose and someone else nominated DeWitt, and that the board members were requested to cast a paper vote.  After the votes were counted, it was decided that DeWitt would be the "consensus" candidate that the board would present to the public for nomination.  After the executive session, a formal nomination of DeWitt was made and unanimously approved by the board at its public meeting.

Petitioner alleges that respondent took improper actions to ensure that the candidate favored by her, namely DeWitt, was nominated and appointed to the BOCES position.  Petitioner requests that that I order a new election for the position.[1]

Respondent denies petitioner's allegations and contends that the appeal must be dismissed as untimely and for failure to demonstrate a clear right to the relief requested.  Respondent also contends that petitioner's allegations relating to the Open Meetings Law must be dismissed for lack of jurisdiction.  Respondent further contends that the Education Law does not authorize the censure or reprimand of a school board member; and denies that her actions were in any way arbitrary, capricious or illegal.

Initially, I must address petitioner’s reply which raises allegations not originally contained in his petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  The petition consists of a minimal one page "Verified Petition" that includes three numbered items and petitioner's claim for relief, an attached nine-page letter from petitioner to the Commissioner, and seven exhibits.  Although the petition is somewhat unorganized and inconsistent, I find that petitioner's claim and demand for relief with respect to the BOCES appointment are adequately set forth in his petition.  Respondent does not plead any prejudice resulting from the petition nor do I find any such prejudice.  Accordingly, I decline to dismiss the petition as violating §275.10 of the Commissioner's regulations.

The appeal, however, 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 O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner may excuse a deminimus delay in commencing an appeal (Appeal of Kathy and Shawn R., 39 Ed Dept Rep 152, Decision No. 14,199).  Petitioner originally attempted to commence this appeal by sending a letter, which was received by my Office of Counsel on April 11, 2008.  Petitioner did not successfully serve respondent with a petition meeting the requirements of Parts 275 and Parts 276 of the Commissioner's regulations until April 23, 2008.  Except in unusual circumstances, ignorance of the appeal process will not excuse a delay in commencing an appeal (Appeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660; Appeal of E.M., 44 id. 156, Decision No. 15,130;Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).  Petitioner's lack of knowledge of the appeal process and the fact that he is acting without an attorney do not constitute a sufficient basis to excuse petitioner's delay (Appeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660).  Accordingly, the appeal is dismissed as untimely.

The appeal must also be dismissed on jurisdictional grounds.  The gravamen of petitioner's complaint relates to allegedly "illegal" actions taken in executive session with respect to the BOCES appointment and nomination, which is a matter that falls squarely within the ambit of the Open Meetings Law.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.  Accordingly, I lack jurisdiction to determine whether respondent engaged in illegal actions in an executive session with respect to the BOCES appointment and nomination of DeWitt.

Furthermore, to the extent petitioner seeks a new election for the BOCES seat to which DeWitt was appointed, the appeal must be dismissed for failure to join her as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption 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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  In this case, although the record indicates that a copy of the petition was served on DeWitt, petitioner did not name DeWitt as a respondent in the caption of the notice of petition or petition.  Therefore, she was not properly joined as a party (seeAppeal of Loschiavo, 45 Ed Dept Rep 525, Decision No. 15,404).  Since DeWitt would be adversely affected if I were to grant petitioner's request for a new election for the BOCES seat she currently holds, she is a necessary party to this appeal (seeAppeal of Kurlans, et al., 37 Ed Dept Rep 293, Decision No. 13,861), and petitioner's failure to join her thus requires dismissal of the appeal.

While the appeal must be dismissed for the foregoing reasons, one administrative matter remains.  Respondent requests that I issue her a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of her powers or performance of duties as a board member.  It is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Application of Mazile, 45 id. 378, Decision No. 15,356).  In view of the fact that the petition is dismissed for the reasons set forth above and there has been no finding that respondent acted in bad faith, I find that respondent is entitled to receive the requested certificate.

THE APPEAL IS DISMISSED.

END OF FILE