* Subsequent History: Matter of Moss v New York State Educ. Dept. et al.; Supreme Court, Albany County;  (Ferreira J.); Judgment dismissing the petition; September 19, 2022. *

Appeal of WILIAM KING MOSS III from action of the Board of Education of the Brentwood Union Free School District; Superintendent Richard Loeschner; trustees Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri 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. 18,006

(June 16, 2021)

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

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Brentwood Union Free School District (“respondent board”); Richard Loeschner as superintendent; 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 hiring of appointees Andrea Zuart, Jaime Tartaro, Dominic Florian, Jean Daniel, and Nicole Wooley.  Petitioner additionally seeks removal of the superintendent and trustees from office.  The appeal must be dismissed, and the application must be denied.

The bulk of petitioner’s claims must be dismissed on grounds of collateral estoppel.  Collateral estoppel, or issue preclusion, is

a narrower species of res judicata [which] precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (Ryan, et al. v. New York Tel. Co., et al., 62 NY2d 494, 500 [1984]).

The overriding principle is that a party should get only a single “bite at the apple” – i.e., a single chance to litigate her or his claims (see generally Rapone v. Katz, 39 Misc.3d 129 (A) [1st Dept 2013]).  It is well settled that principles of res judicata and collateral estoppel apply in appeals pursuant to Education Law § 310 (see Appeal of Bach, 32 Ed Dept Rep 499, Decision No. 12,898; Appeal of Tobin, 30 id. 315, Decision No. 12,477).

Here, petitioner presents almost identical allegations and seeks almost identical relief as he did in Appeal of Moss and Sealy (60 Ed Dept Rep, Decision No.18,001), where he served as a co-petitioner.  Indeed, many of petitioner’s allegations concern the very same hiring practices and appointments challenged therein.  Therefore, the vast majority of petitioner’s claims are hereby dismissed on grounds of collateral estoppel.[1]

Petitioner presents two new allegations in this appeal, neither of which compel a different outcome.  First, he presents claims on behalf of Melanie Jackson, an unsuccessful candidate for a position within the district.  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 an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Petitioner has not explained how he is personally aggrieved by Ms. Jackson’s unsuccessful application for a teaching position.  Therefore, any claims asserted on Ms. Jackson’s behalf are hereby dismissed.

Second, petitioner alleges that respondent board improperly employed and paid three teachers – Dominic Florian, Jean Daniel, and Nicole Wooley – who lacked appropriate certification at the time they were hired.[2]  Respondent board concedes as much in its answer.  To the extent petitioner seeks relief for this error under Education Law § 310, however, his claims 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 that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  Here, respondent board indicates that it no longer employs the uncertified teachers in question.  Therefore, no meaningful relief can be granted with respect to petitioner’s claim and it must be dismissed.[3]

To the extent petitioner seeks removal of the superintendent or trustees under Education Law § 306, the application must be dismissed for the same reasons as in the prior appeal.  There, as here, there is no evidence that respondents’ actions were more than negligent, and mere negligence on the part of a school officer is not enough to warrant removal (Appeal of Gates, et al., 57 Ed Dept Rep, Decision No. 17,188; Application of Ciffone, et al., 35 id. 243, Decision No. 13,529; Appeal of Schofield, 34 id. 143, Decision No. 13,263).  Accordingly, petitioner’s application for removal must be denied.

As in the prior appeal, the superintendent and trustees request that I certify that they acted in good faith (see Education Law § 3811 [1]).  Such certification is solely for the purpose of authorizing the board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in the statute.  It is appropriate to issue such certification unless it is established on the record that the requesting board trustee(s) acted in bad faith (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Appeal of Berger, 56 id., Decision No. 16,996; Appeal of Fletcher and Ferguson, 55 id., Decision No. 16,901).  Since there has been no finding that the superintendent or trustees acted in bad faith, I hereby certify solely for the purpose of Education Law § 3811 (1) that the superintendent and trustees are entitled to a certificate of good faith.

Although the appeal must be dismissed and the application denied for the grounds identified above, this is the second appeal involving respondent board’s employment of teachers who lacked appropriate certification.  While respondent board indicated in Appeal of Moss and Sealy (60 Ed Dept Rep, Decision No.18,001) that the teachers at issue held appropriate certification at the time they were hired, it makes no such representation in this appeal.  Respondent has a statutory obligation to employ only “qualified” teachers (Winter v. Bd. of Educ. for Rhinebeck Cent. Sch. Dist., 79 NY2d 1 [1992]; Sullivan v. Windham-Ashland-Jewett Cent. Sch. Dist., 212 AD2d 63 [3d Dept 1995]; see Education Law §§ 3001, 3009, 3010). 

Respondent board asserts that these errors “resulted from a lapse in the School District’s Human Resources Department.”  Respondent board further attributes its conduct to the “unprecedented challenges resulting from the COVID-19 pandemic.”  These challenges notwithstanding, respondent is hereby admonished to ensure that it employs, and pays, only appropriately certified teachers.  To that end, I am transmitting a copy of this decision, and my decision in the prior appeal, to the State Education Department’s Office of Teaching Initiatives for appropriate oversight and monitoring.

Any of petitioner’s remaining contentions not specifically addressed herein are dismissed as without merit.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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