Appeal of ROBERT KEITH JONES from action of the Board of Education of the City School District of the City of Buffalo regarding attendance at school board meetings.

Decision No. 17,436

(July 6, 2018)

Stephanie A. Saunders, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner challenges the actions of the Board of Education of the City School District of the City of Buffalo (“respondent” or “respondent board”) regarding his attendance at school board meetings.  The appeal must be dismissed.

Petitioner is the parent of a student attending school in respondent’s district.  At a regularly scheduled meeting of respondent board on September 9, 2015, petitioner signed up to participate in the public comment portion of the meeting.  Respondent asserts that prior to the public comment portion of this meeting, board president James B. Sampson[1] (“Sampson”) read a statement reminding speakers of the rules for participation, specifically that they “conduct themselves professionally and that their comments remain civil, courteous and bearing in mind that they will be heard by people of all ages.”

The parties dispute the characterization of petitioner’s remarks at the September 9 meeting. Respondent asserts that petitioner’s remarks were hostile, aggressive and contained threats against board member Carl Paladino.[2]  Petitioner denies that he made any threat against such board member, and asserts that his remarks were taken out of context.

Subsequently, at a regularly scheduled meeting of respondent board on September 23, Sampson referred to petitioner’s remarks at the September 9 meeting and cautioned petitioner to comply with the rules for participation in the public comment portion of the meeting. Respondent asserts that petitioner ignored such warning and “continued to use speech and mannerisms that were threatening.”  Petitioner contends that he properly followed respondent’s policy when he signed up to speak at the September 23 meeting and denies making any threatening statements.  While the parties dispute the characterization of the events occurring at the September 23 meeting, the record indicates that petitioner (accompanied by his child) was escorted from that meeting by a security guard and a City of Buffalo police officer.  This appeal ensued. Petitioner’s request for interim relief, which sought an order prohibiting respondent from adopting any resolution which would “ban” petitioner from attending board meetings, was denied.

Petitioner asserts that respondent’s actions in removing him from the meeting were arbitrary and capricious, an abuse of discretion, and a violation of the Open Meetings Law.  Petitioner alleges that respondent violated his civil rights and failed to adhere to board policy governing the public speaking portion of the meeting when he was expelled from the September 23 meeting. Petitioner further asserts that at no time during his remarks at the September 9 meeting was he cautioned that his remarks could result in expulsion from the meeting. Petitioner further asserts that his removal from the September 23 meeting was a belated punishment for his behavior at the September 9 meeting without the benefit of a warning consistent with respondent board’s policy.

Petitioner also alleges that his removal from the September 23 meeting was the result of the bias of an individual board member and the failure of respondent to adhere to board policy which resulted in public humiliation and embarrassment when he was removed from that meeting.  Petitioner further asserts that respondent “acted without substantial evidence” and failed to provide him a right to defend himself against the allegations.

As relief, petitioner seeks an order requiring respondent to issue a formal apology and issuing sanctions against respondent board for its actions.  Petitioner further seeks an order requiring respondent to review its bylaws regarding parent and community participation at board meetings.  Further, petitioner seeks monetary relief to compensate for his expulsion from the board meeting, the deprivation of his civil rights and the resulting public embarrassment.

Respondent affirmatively asserts that petitioner’s behavior at both the September 9 and September 23 meetings of the board of education was “menacing, disrespectful and derogative” and, as such, justified respondent’s actions in removing petitioner from the September 23 meeting. Additionally, respondent asserts that the Commissioner lacks jurisdiction to adjudicate novel issues of constitutional law and alleged violations of the Open Meetings Law.  Insofar as petitioner seeks the rescission of a resolution of the board prohibiting petitioner from attending meetings of the board, respondent asserts that such request for relief is moot because no such resolution was ever acted upon by the board.  Furthermore, to the extent that petitioner makes certain claims against individual board members, respondent contends that the appeal must be dismissed for failure to join them as necessary parties. 

I must first address several procedural issues.  First, where a petition contains an application for a stay order, Commissioner’s regulation §276.1 provides that affidavits in opposition to an application for a stay “may be submitted by any party opposing such application.  Such affidavits shall be served within three business days after service of the petition on all other parties, and the original affidavits shall be transmitted to the Office of Counsel, New York State.”  The record indicates that the petition with a request for a stay was served on respondent on October 26, 2015 and that respondent’s affidavit in opposition to the stay was served on November 4, 2015. Because the affidavit in opposition to the stay was not timely served, it was not considered.  Since respondent’s affidavit in opposition to petitioner’s stay request has not been considered, I have considered petitioner’s reply thereto only to the extent it objects to its submission. 

 Next, by letter dated February 25, 2016, petitioner sought permission to submit “additional pleadings.”  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Therefore, to the extent that petitioner’s additional submissions raise allegations regarding the conduct of an individual board member at a board meeting on January 20, 2016, I have not considered such materials.  Accordingly, I have not considered respondent’s March 11, 2016 “Supplemental Memorandum of Law” or petitioner’s March 21, 2016 response thereto, which similarly relate to petitioner’s allegations regarding the January 20, 2016 meeting.

To the extent that petitioner seeks relief related to the resolution put forward by an individual board member relating to petitioner’s attendance at future board meetings, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The record indicates that no such resolution was acted upon by respondent. Therefore, such claims must be dismissed as moot.

To the extent petitioner seeks an “immediate stop to the indiscriminate expulsion of individuals solely based on conflicting points of view with a Board member,” I note that in this regard, petitioner essentially seeks an advisory opinion.  It is well-settled that the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

Moreover, I do not conclude that this matter is inherently capable of repetition yet evading review, since petitioner challenges the board’s action in regard to two specific meetings, does not challenge the bylaw at issue, and is not precluded from challenging the bylaw at issue in the future.  The record indicates that respondent’s bylaw regarding public hearings, a copy of which is included in the record, states, in pertinent part, as follows:

Any speaker who is out of order may be cautioned by the Chair.  If such remarks or behavior persists, the speaker’s privilege to address the Board may be terminated.  Persistent disruptive behavior may result in expulsion from the hearing.

While respondent admits that petitioner was not cautioned at the September 9 meeting that he was out of order and that no mention was made of the possibility of his expulsion, it claims that such provision “even as quoted by the Petitioner do[es] not require that the Petitioner be so cautioned.”  While, as respondent notes, the bylaw does use the word “may” rather than “shall” and therefore does not require that such caution be provided in every case, given the facts of this case, I encourage respondent to review all applicable bylaws and policies related to its public meetings and hearings and I admonish respondent that every effort should be made to comply with this bylaw, and all applicable bylaws and policies in this regard, wherever possible in the future.

To the extent that petitioner claims that his removal from the board meeting violated his constitutional rights, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  As a result, such claims must be dismissed for lack of jurisdiction.

To the extent that petitioner asserts that the actions of respondent board were in violation 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 McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal. 

Insofar as petitioner seeks monetary relief, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875). 

Finally, to the extent that petitioner seeks an apology, the Commissioner lacks the authority to order the board of education or any school district employee to issue an apology (Appeal of L.D., 55 Ed Dept Rep, Decision No. 16,864; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773; Application of McDougall and Dacey, 42 id. 195, Decision No. 14,819).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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