Appeal of J.S. from action of the Board of Education of the Jordan-Elbridge Central School District and Superintendent Marilyn Dominick regarding a transfer.

Decision No. 16,077

(June 22, 2010)

Satter & Andrews, LLP, attorneys for petitioner, Mimi C. Satter, Esq., of counsel

Mevec & Cognetti, attorneys for respondents, Danny Louis Mevec, Esq., of counsel

STEINER, Commissioner.--Petitioner challenges various actions of the Board of Education of the Jordan-Elbridge Central School District ("board") and Superintendent Marilyn Dominick (“Dominick”, collectively referred to as “respondents”), regarding her transfer from Elementary School Principal to the position of Special Projects Administrator. The appeal must be dismissed.

Petitioner was employed by the district on January 5, 1998 and was granted tenure in the tenure area of “administrator”, effective January 5, 2001.

On June 8, 2009, the board authorized an investigation into complaints concerning the district’s elementary school, where petitioner was principal.  Effective June 9, 2009, petitioner was transferred to the position of Special Project Administrator.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 29, 2009.

Petitioner asserts that the transfer was made for disciplinary reasons in violation of the due process rights afforded her under Education Law §3020-a.  Petitioner asks that the transfer be annulled, that she be reinstated as Elementary School Principal and that all references to the transfer be expunged from district records.

Respondents maintain that the petition fails to state a cause of action and that the appeal is untimely.  Respondents object to petitioner’s memorandum of law and reply.  Respondents also request attorneys’ fees.

First, I will address respondents’ procedural objections.  Respondents assert that petitioner submitted a reply memorandum of law without prior approval in violation of §276.4(a) of the Commissioner’s regulations.  I disagree.  The record reveals that petitioner timely submitted her memorandum of law within 20 days after service of the answer (8 NYCRR §276.4) and there is nothing in the record to substantiate respondents’ claim that it is a reply memorandum of law.

However, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Similarly, 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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed petitioner’s memorandum of law and reply, I have not considered those portions that contain new allegations or exhibits.

The appeal must be dismissed for failure to join 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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Because petitioner seeks reinstatement to her previous position as Elementary School Principal and that position is currently held by Elizabeth Primo, the interim Elementary School Principal, Primo’s rights would be adversely affected by a determination in petitioner’s favor.  Therefore, Primo is a necessary party and the appeal must be dismissed for failure to join her.

The appeal must also 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  Petitioner was reassigned to the Special Project Administrator position on June 9, 2009 and her petition was not served until October 13, 2009.

Petitioner contends that her delay should be excused because she did not learn that her transfer was allegedly for disciplinary reasons until statements were made at a board meeting on October 7, 2009.  Although an appeal may in some circumstances be commenced within 30 days of discovery of an alleged wrongdoing (seeAppeal of Goldin, 43 Ed Dept Rep 330, Decision No. 15,009; Appeal of Johnson, 38 id. 327, Decision No. 14,045), the alleged wrongdoing is petitioner’s reassignment on June 9, 2009, of which she was aware at the time.  Accordingly, the appeal must be dismissed as untimely.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

A board of education has broad discretion in assigning members of its professional staff, so long as the employee’s tenure rights are not infringed upon (Matter of Van Heusen v. Bd. of Ed., City School Dist. of the City of Schenectady, et al., 26 AD2d 721; Appeal of Garry, 19 Ed Dept Rep 359, Decision No. 10,166).

Neither a superintendent nor a board of education may make a reassignment for disciplinary reasons without following the procedures set forth in Education Law §3020-a (Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Appeal of Irving, 39 id. 761, Decision No. 14,373).  In support of her claim, petitioner relies on the affidavit of a former employee of the district which avers that at respondent’s October 7, 2009 meeting, the board president, in response to an inquiry as to why petitioner had not been reinstated, stated, “If you knew what I knew, you would think that ... [petitioner’s] reassignment was a good decision for the District.”  The former employee’s affidavit also alleges that in a meeting with Dominick on October 8, 2009, Dominick told her that Elbridge Elementary was the only building in the district with “poor student performance” and that petitioner was to blame.  Dominick also allegedly referenced poor judgment by petitioner in dealing with a special education student and her alleged failure to make special education referrals in general.

While I have reviewed the former employee’s affidavit and the statements made therein, I find that petitioner has failed to adequately demonstrate that her transfer was for disciplinary reasons.  The critical statements allegedly made by the board president and superintendent occurred several months after the assignment.  Moreover, in her affidavit, Dominick denies placing any “blame” on petitioner or ever stating that petitioner used “poor judgment” in dealing with any student.  Petitioner has offered no evidence that disciplinary action was being contemplated prior to the assignment.  Accordingly, on the record before me, the appeal must be dismissed.

Finally, respondents’ request for attorneys’ fees must be rejected.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

THE APPEAL IS DISMISSED.

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