* Subsequent History: Matter of Moss v New York State Educ. Dept.; Supreme Court, Albany County (Platkin, J.), Decision, Order & Judgment dismissed the petition to review; September 29, 2021 *

Appeal of WILLIAM KING MOSS, III, from action of the Board of Education of the Brentwood Union Free School District;  Richard Loeschner as superintendent; Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod, and Cynthia Ciferri as trustees; Vincent Autera[1] and Wayne Loper regarding a personnel matter and application for the removal of Richard Loeschner as superintendent and Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod, and Cynthia Ciferri as trustees.

Decision No. 17,952

(December 22, 2020)

Bond, Schoeneck & King, PLLC, attorneys for respondents, Candace J. Gomez Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals from action of the Board of Education of the Brentwood Union Free School District (“board”); Richard Loeschner as superintendent (“superintendent”); and Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod, and Cynthia Ciferri as trustees (“trustees”) (collectively, “respondents”) concerning the appointment of Vincent Autera (“Autera”) and Wayne Loper (“Loper”) to two administrative positions within respondents’ district.  Petitioner also seeks the removal of the superintendent and trustees from office.  The appeal must be dismissed and the application must be denied.

During the 2018-2019 school year, the board interviewed three candidates, including Autera, for a leave replacement position for the principal at respondents’ Brentwood Freshman Center.  The board also interviewed three candidates, including Loper, for a leave replacement position for an assistant principal at respondents’ Brentwood High School.  Ultimately, the board appointed Autera to the principal leave replacement position and Loper to the assistant principal leave replacement position. 

Subsequently, “the leave replacement positions developed into probationary appointments,” according to an affidavit submitted by the superintendent.  On September 19, 2019, the board appointed Autera as probationary principal at Brentwood Freshman Center and Loper as probationary assistant principal at Brentwood High School.  This appeal and application ensued. 

Petitioner contends that respondents willfully violated board policy 9240 by appointing Autera and Loper to their probationary positions without posting the positions; allowing district employees to apply; reviewing all resumes or conducting interviews; and giving district residents preference for the positions.  Petitioner also contends that respondents willfully violated an “order” of the Commissioner in Application and Appeal of Moss (58 Ed Dept Rep, Decision No. 17,602) by failing to abide by policy 9240.  Moreover, petitioner maintains that respondents willfully violated board policy 9240 by “exclud[ing]” six African American candidates from the hiring process.  Petitioner contends that respondents have a practice of excluding and removing African Americans from district employment while protecting white employees from demotion or termination.  For relief, petitioner requests that the superintendent and trustees be removed from office and that the Commissioner reverse the board’s decision to hire Autera and Loper.

Respondents argue that petitioner’s claims must be dismissed, in part, as untimely and for lack of standing.  On the merits, respondents contend that they did not violate policy 9240 and that petitioner has not established an entitlement to the relief requested.

First, I must address several procedural matters.  Petitioner submits a reply that is approximately 100 pages in length and includes numerous exhibits that were not included with the 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 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).  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.

Following submission of the reply, petitioner submitted four additional “missives” and a memorandum of law, all containing new exhibits.  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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Petitioner’s additional submissions do not provide information that would assist in making a determination in this case.[2]  Moreover, many of the exhibits could have been provided at the time the petition was filed and petitioner offers no explanation for his failure to do so.  Accordingly, I decline to accept these exhibits into the record.

Petitioner also submits a proposed amicus curiae brief from Laurie B. Feinstein, Esq., who identifies herself as “an attorney whose work has focused on human rights and immigration law.”  Section 275.17 of the Commissioner's regulations permits interested persons to file applications to submit memoranda amicus curiae.  In considering whether to grant such applications, the Commissioner has historically adopted the standard applied by the Court of Appeals and required the interested party to establish at least one of the following criteria:  (1) that the parties are not capable of a full and adequate presentation and that the interested party could remedy this deficiency; (2) that the interested party could identify law or arguments that might otherwise escape the Commissioner’s consideration; or (3) that the proposed amicus curiae submission would otherwise be of assistance to the Commissioner (see Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660; 22 NYCRR §500.23[a][4]). 

I find no basis upon which to conclude that petitioner is not capable of a full and adequate presentation of his case requiring remedy by Ms. Feinstein’s proposed amicus submission.  Moreover, I have reviewed the proposed amicus submission and find that it fails to identify law or arguments that might otherwise escape my consideration.  Nor do I find that it would otherwise be of assistance in this case.  Accordingly, I decline to accept Ms. Feinstein’s proposed amicus brief into the record.

Finally, petitioner submits a letter from Victor Goode, Assistant General Counsel for the National Association for the Advancement of Colored People (NAACP).  Although this letter speaks to important concerns regarding racial inequities in education, including the underrepresentation of minorities in teaching and administrative positions, these issues are beyond the scope of my review in this appeal and application.  In addition, the letter discusses petitioner’s qualifications for the probationary positions at issue in this appeal; however, the record reflects that petitioner did not in fact apply for these positions.  Finally, I note that the letter was received by my Office of Counsel several months after this matter was fully submitted.  Accordingly, while I have afforded Mr. Goode’s letter due consideration, I decline to accept it into the record before me.

The appeal must be dismissed, in part, for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

The crux of petitioner’s appeal under Education Law §310 is that respondents erred by awarding the probationary positions to two internal candidates – Autera and Loper – without following the strictures of policy 9240.  Petitioner admits, however, that he did not apply to these positions, nor has he alleged or proven in the petition that he would have been qualified for such positions.  Moreover, even assuming that he is so qualified, “the mere fact th[at] petitioner may have been qualified for the position[s] does not give him a legal entitlement to the position[s] based upon respondents’ failure to follow a procedure outlined in board policy” (Application and Appeal of Moss, 58 Ed Dept Rep, Decision No. 17,602).  Therefore, I find that petitioner lacks standing to request that I “reverse” respondents’ appointments of Autera and Loper to their respective positions, and his appeal must be dismissed to this extent. 

In any event, I note that an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate petitioner’s allegations that respondents have engaged in racially discriminatory employment practices or otherwise violated the Human Rights Law (see e.g. Appeal of T.A., 58 Ed Dept Rep, Decision No. 17,443 [appeal to Commissioner not appropriate forum to adjudicate disparate impact claims arising under Title VII of Civil Rights Act of 1964]; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879 [appeal to Commissioner under Education Law §310 not proper forum for alleged violation of Title VII]).  The Human Rights Law contains a comprehensive scheme for the investigation and enforcement of human rights violations through the Division of Human Rights (“DHR”) (see Executive Law §293).  Accordingly, it would be contrary to this structure for the Commissioner to assume jurisdiction over claims arising under the Human Rights Law.

With respect to petitioner’s sought removal of the superintendent and trustees from office pursuant to Education Law §306, petitioner has standing to bring such claims as a district resident and taxpayer (Appeal of Moss, 58 Ed Dept Rep, Decision No. 17,602; Appeal and Application of Gates, et al., 57 id., Decision No. 17,188; Application of Wilson, 41 id. 196, Decision No. 14,663; Application of Eisenkraft, 38 id. 553, Decision No. 14,092).  However, certain allegations concerning his removal application must be dismissed as untimely.  An appeal or application 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, 277.1; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  While petitioner states in his reply that he does not seek relief for any conduct occurring before September 19, 2019, to the extent that the petition could be construed to challenge any earlier actions – including respondents’ appointments of Autera and Loper to their initial leave replacement positions – such claims must be dismissed as untimely (see Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,483).

Turning to the merits, a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Gates, 57 Ed Dept Rep, Decision No. 17,264; Application of Kolbmann, 48 id. 370, Decision No. 15,888).  To be considered willful, a school officer’s actions must have been intentional and committed with a wrongful purpose (see Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315).

In an appeal or application 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, 277.1; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, even assuming the truth of petitioner’s allegations, respondents are not subject to removal for violating board policy 9240.  It is well settled that, even if proven, violation of a board’s bylaws or policies alone is not a sufficient basis for removal of a member of a board of education in a proceeding pursuant to Education Law §306 (Application of Simmons, 53 Ed Dept Rep, Decision No. 16,596; Application of Malgieri, et al., 52 id., Decision No. 16,482; Application of Vogel, 46 id. 481, Decision No. 15,570).

Moreover, petitioner’s argument that respondents violated an “order” of the Commissioner in Application and Appeal of Moss (58 Ed Dept Rep, Decision No. 17,602) is without merit.  In Application and Appeal of Moss (58 Ed Dept Rep, Decision No. 17,602) - which petitioner commenced against four of the board’s trustees, including three who are parties to the instant appeal and application – the Commissioner dismissed petitioner’s appeal for failure to join a necessary party and denied his removal application on the merits.  The Commissioner nevertheless “admonish[ed] respondents to comply with all aspects of board policy 9240 with respect to administrative recruitments,” although she found respondents’ actions “understandable” given the circumstances of the appeal.  Such dicta did not amount to an order of the Commissioner, as petitioner purports.

In any event, petitioner has not proven that respondents willfully violated the Commissioner’s admonishment to comply with policy 9240.  The record reflects that respondents complied with the terms of a collective bargaining agreement with the Brentwood Principals and Supervisors Organization and board policy 9240 in filling both probationary appointments at issue in this appeal.  Although petitioner objects to respondents’ failure to conduct a new recruitment process when Autera’s and Loper’s leave replacement positions led to probationary positions, policy 9240 does not expressly impose any such requirement or otherwise prohibit respondents’ actions in this appeal.  Moreover, although petitioner asserts that respondents’ hiring process “excluded” six African American candidates, he does not allege that these candidates applied for the positions.  Accordingly, petitioner has not proven that respondents willfully violated the Commissioner’s admonishment in Application and Appeal of Moss (58 Ed Dept Rep, Decision No. 17,602), even if I were to treat such admonishment as an order within the meaning of Education Law §306.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED

END OF FILE