Appeal of S.S., on behalf of her children A.S., L.S., D.S., and A.S., from the failure of the Board of Education of the Worcester Central School District to take action relating to allegations of invasion of privacy and bullying and application for the removal of William Fisher, Jr., as president and member of the Board of Education.

Decision No. 17,492

(August 21, 2018)

Ferrara Fiorenza P.C., attorneys for respondent, Catherine E. M. Muskin, Esq., of counsel.

ELIA, Commissioner.--Petitioner appeals from the failure of the Board of Education of the Worcester Central School District (“respondent board”) to terminate the employment of  Jennifer Westfall Fisher, a teaching assistant, and Jennifer Dorsch, a substitute teacher, and to take action against William Fisher, Jr., president and member of respondent board, for comments made on social media relating to the conditions in petitioner’s house. Petitioner also seeks an order removing William Fisher, Jr. from office.  The appeal must be dismissed and the application for removal denied.

At some point in January 2015, petitioner learned that her home had allegedly been broken into and that photographs allegedly were taken by William Fisher, Sr., a Town Judge and the father of respondent board president, William Fisher, Jr., and the father-in-law to Jennifer Westfall Fisher.  Petitioner asserts that, subsequently, these photographs were posted publicly on Facebook by Joanne Fisher, mother to William Fisher, Jr. and mother-in-law to Jennifer Westfall Fisher.  The photographs show portions of a house and property that are cluttered with various objects, messy, and disorderly.  This led to numerous Facebook posts by the public disparaging the people who lived there and the condition of the property.  Included in these posts were comments by Jennifer Westfall Fisher and Jennifer Dorsch.[1]   

Apparently, because of these pictures, petitioner alleges that Child Protective Services (“CPS”) investigated her family, she and her family had to leave their home, she had her animals taken from her, and her homeowners’ insurance was not renewed.  Additionally, petitioner claims that these pictures caused her to suffer defamation and slander, that her daughter L.S. has suffered bullying by other students, and that L.S.’s dance instructor will no longer allow her to attend dance lessons.

By email dated November 26, 2016, petitioner wrote to respondent board’s superintendent, William Diamond (“Diamond”).  Petitioner explained that William Fisher, Jr. and Jennifer Westfall Fisher were “bullies” and that having individuals associated with the school district engaging in such conduct sends a bad message to children and the community.  After describing the above incident, petitioner requested that  William Fisher, Jr. step down from the board of education, and that she be allowed to speak at respondent board’s next meeting.

In an affidavit, Diamond states that he investigated the matter and determined that no violation of the federal Family Educational Rights and Privacy Act (“FERPA”) (see 20 USC §1232g; 34 CFR Part 99) occurred and that there was no other breach of confidentiality on the school district’s part, as it related to the postings at issue on Facebook.  Diamond also determined that no referral under Part 83 of the Commissioner’s regulations was warranted, that the CPS investigation did not originate with or involve the school district or any of its representatives, and - for reasons unrelated to the instant appeal - that since the spring of 2016, Jennifer Dorsch was no longer employed by the school district.

Although there appears to be some disagreement over what was said at the meeting, Diamond met with petitioner on December 1, 2016 and, according to his affidavit, informed her that this matter would be referred to the district’s legal counsel, that the matter would be discussed with those who were directly involved, and that it would be discussed in executive session with respondent board.  On January 15, 2017, petitioner again inquired about the status of the above matter and on January 16, 2017 alleged in an email that one of her children, L.S., had been bullied as a result of the Facebook post.  Diamond asserts in his affidavit that he promptly and thoroughly investigated petitioner’s claim that L.S. was bullied, that the district took appropriate action based on its investigation of the alleged bullying, that petitioner was notified of such action by telephone on January 17, 2017 and that the district fully complied with its policies and procedures. 

Petitioner again sent an email to Diamond on January 30, 2017, expressing her dissatisfaction with the district’s response to the Facebook posting matter, and threatened to file a FERPA complaint and an appeal to the Commissioner.  On February 14, 2017, petitioner had the petition in this matter served upon respondent board’s district clerk and this appeal ensued. 

Petitioner requests that, based on the “appalling, egregious, illegal, and immoral actions perpetrated against myself and my children,” Jennifer Westfall Fisher and Jennifer Dorsch be terminated from employment with the district.  Moreover, petitioner requests that William Fisher, Jr. be removed from respondent board.  Petitioner also requests that respondents “no longer be allowed to be employed, serve on the school board, or volunteer for any school district in the State of New York.”

Respondent alleges that the petition must be dismissed on various procedural grounds as well as on the merits.  Specifically, respondent contends that petitioner failed to properly serve Jennifer Westfall Fisher, William Fisher, Jr., and Jennifer Dorsch and thus the appeal and application must be dismissed for failure to join them as necessary parties.  Respondent further argues that petitioner’s caption in this matter was legally defective because those individuals are not named as respondents. Respondent also contends that the appeal must be dismissed as untimely.  Respondent further contends that the application for the removal of William Fisher, Jr. must be denied because the petition does not include the required notice under §§277.1(b) and 275.11(c) of the Commissioner’s regulations.  Respondent asserts that Jennifer Dorsch is no longer a school district employee and thus any claims against her are now moot.  Respondent also alleges that Jennifer Westfall Fisher is a licensed teaching assistant, and the Commissioner lacks the authority to terminate her employment with the district because she is entitled to the “grievance” procedure outlined by her collective bargaining agreement.  Respondent also contends that no substitution of the Commissioner’s judgment is warranted because respondent board acted appropriately and took proportional action in this matter, and at no time did it act in an arbitrary and capricious manner.  Respondent also argues that the petition does not contain a clear and concise statement of petitioner’s claims, and is full of inappropriate speculation, conjecture and opinions. 

I must first address petitioner’s reply - a document she titled a “Verified Answer.”  Respondents argue that the reply is untimely and also seeks to include new allegations and charges against Diamond.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).  In this case, the answer was served by mail on petitioner on March 3, 2017.  Therefore, to be timely, the reply had to be served by March 17, 2017.  Petitioner submits two affidavits of service with her reply, one which states that the document was mailed to the district’s attorney of record on March 16, 2017, and one which states that personal service was made on Diamond on March 16, 2017.  Respondent claims service upon the district’s counsel was not made until March 20, 2017, but has provided no proof to contradict petitioner’s affidavits of service.  Therefore, I decline to dismiss petitioner’s reply as untimely.

However, 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer, including the additional allegations made against Diamond. 

Furthermore, respondent asserts that under §275.14(a) of the Commissioner’s regulations, “[t]he petitioner shall reply to each affirmative defense contained in an answer” and respondent notes that petitioner has failed to do so.  Respondent argues that I must accept the affirmative defenses to which petitioner failed to respond as “true before the Commissioner undertakes a legal analysis of the defenses.”  However, the result of petitioner’s failure to reply to each affirmative defense is that the facts alleged by respondent are considered to be true.  A legal analysis of any admitted facts with respect to each affirmative defense still must be undertaken, and I am not bound to accept respondent’s legal conclusion with respect to each affirmative defense merely because petitioner did not interpose a reply to them (see Appeal of Carmand and White, 54 Ed Dept Rep, Decision No. 16,689).  

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).   

The appeal and application for removal must be dismissed for failure to join necessary parties.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

In this case, the petition was served only on respondent board's district clerk.  Although petitioner seeks relief against Jennifer Westfall Fisher, Jennifer Dorsch, and William Fisher, Jr., there is no proof that petitioner personally served any of them.  Under §275.8(a) of the Commissioner’s regulations, a district clerk is authorized to accept service on behalf of the board of education, but generally not on behalf of individual respondents (Appeal of Kaufman, et al., 57 Ed Dept Rep, Decision No. 17,250; Appeal of Budich and MacDonald, 54 id., Decision No. 16,774).  Similarly, in the context of a removal application, service upon the district clerk does not secure personal jurisdiction over an individual respondent, such as the board president whom petitioner seeks to have removed from office (Application of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,391; Application of Lyons-Birsner and Birsner, 57 id., Decision No. 17,160).  There is no proof in the record that the district clerk was authorized to accept service on behalf of any of the three individuals, and therefore, service was thus improper.  

To the extent petitioner seeks an order directed to respondent board to terminate the employment of Jennifer Westfall Fisher and Jennifer Dorsch and to remove William Fisher, Jr. from office, the appeal and application must be dismissed for failure to join necessary parties.  Jennifer Westfall Fisher, Jennifer Dorsch, and William Fisher, Jr. are necessary parties to this proceeding because the appeal and application for removal involve their respective rights to district positions and, if all the relief sought in the petition were granted, to their right to serve as a board member, employee or volunteer in any school district in the State.  Therefore, since none of them have been joined by petitioner through proper service of the petition, the petition is dismissed for failure to join them as necessary parties.

Additionally, the notice given to respondent William Fisher, Jr., under Education Law §306, was defective and would warrant denial of the application.  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under 8 NCYRR §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Application of Carrion, 50 id. Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253; Application of Knapp, 41 id. 41, Decision No. 14,608).  Therefore, I must deny the application to remove William Fisher, Jr. from office on this ground as well.

Respondent asserts that Jennifer Dorsch is no longer employed by the school district, and thus, petitioner’s request for an order that she be terminated from employment is rendered 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Since petitioner has submitted no proof that Ms. Dorsch is currently employed by respondent, petitioner’s request that her employment be terminated is moot and must be dismissed on that basis.

Furthermore, to the extent petitioner seeks the termination of Jennifer Westfall Fisher’s employment, such request for relief must also be denied.  She is a teaching assistant and as such may be a tenured school employee (see, 8 NYCRR §30-1.8[d]).  The specific relief of ordering termination cannot be granted because the Commissioner has no authority to order the suspension or termination of a tenured employee absent an Education Law §3020-a hearing or to order disciplinary action against other school district employees (see Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of M.B. and M.B., 56 id., Decision No. 17,044; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,733).  

Finally, to the extent petitioner seeks an order banning Jennifer Westfall Fisher, Jennifer Dorsch and William Fisher, Jr. from serving as board members, school district employees or volunteers, “for any school district in the State of New York,” petitioner has not established a clear legal right to such extraordinary relief.  Petitioner cites no statute that would authorize the Commissioner to order such a remedy and indeed I find none.

In light of this disposition, it is unnecessary for me to address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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