Appeal of WILLIAM KING MOSS III and CRYSTAL JACKSON from action of the Board of Education of the Brentwood Union Free School District; superintendent Richard Loeschner; assistant superintendent Wanda Ortiz-Rivera; Human Resources Coordinator Alice Vanderveldt; trustees Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri; and Lindsey Lorefice 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. 18,064

(January 3, 2022)

Ingerman Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal from action of the Board of Education of the Brentwood Union Free School District (“board”); Richard Loeschner as superintendent (“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 appointment of Lindsey Lorefice to a teaching position.  Petitioners additionally seek removal of the superintendent and trustees from office.  The appeal must be dismissed and the application must be denied.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  During the 2019-2020 school year, petitioner Jackson applied for a position as an English as a New Language (“ENL”) teacher.  Although respondent did not have any current openings, it elected to interview petitioner Jackson due to an anticipated need for such positions.  This interview occurred on March 28, 2019.

In June 2019, one of respondent’s ENL teachers retired.  Respondent interviewed Lindsey Lorefice for this position on July 25 and August 23, 2019.  On November 21, 2019, the board appointed respondent Lorefice to a probationary position as an ENL teacher.  This appeal and application ensued.

Petitioners argue that the board did not follow its own policies in appointing respondent Lorefice.  Petitioners also allege that respondent engaged in racially discriminatory hiring practices.  Petitioners seek the removal of the trustees and superintendent, as well as the termination of respondent Lorefice’s employment.   

Respondents assert, among other defenses, that petitioners’ claims are untimely and that they lack standing.  On the merits, respondents deny petitioners’ allegations, asserting that petitioner Jackson did not have a legal right to the ENL position and that its hiring practices complied with board policy. 

First, I must address a preliminary matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§ 275.3, 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 petitioners’ 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.

The appeal must be dismissed, and the application must be denied, as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Here, petitioners challenge respondents’ appointment of respondent Lorefice, which occurred on November 21, 2019.  Petitioners served this petition on February 7, 2020, more than two months later.

Petitioners assert that they only learned that respondent Lorefice should not have been interviewed on January 16, 2020, when the superintendent stated at a board meeting that the district “does not interview teachers who are not certified in the areas that [they] are looking for....”  Even assuming that this statement represents official district policy, petitioners challenge respondent Lorefice’s appointment in this appeal, not her interview.[1]  That appointment occurred at a public meeting, which provided petitioners with actual or constructive notice thereof (Application of Moss, 60 Ed Dept Rep, Decision No. 17,956; Appeal of Williams, 48 id. 343, Decision No. 15,879; Appeal of Lawson, 33 id. 427, Decision No. 13,102).  Thus, I find that petitioners have failed to establish good cause for the delay (8 NYCRR 275.16).  As such, the appeal and application must be dismissed as untimely.

Given this determination, the superintendent and trustees are entitled to certification that they acted in good faith.  Such certification is solely for the purpose of authorizing boards 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 Education Law § 3811 (1).  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).  Because the appeal has been dismissed on procedural grounds, I hereby certify that the superintendent, trustees, and any other individual respondents within the scope of Education Law § 3811 acted in good faith (see Application of Brentwood Youth Activities, Inc., 59 Ed Dept Rep, Decision No. 17,821) Application of McCray, 57 id., Decision No. 17,240).

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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