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; trustees Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri; Dominic Florian; Lisa (Markowski) Johnson; Suzanne McGee; and Jessica Weiss regarding personnel matters 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.

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; trustees Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri; Dominic Florian; Lisa (Markowski) Johnson; Suzanne McGee; and Jessica Weiss regarding personnel matters 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. 18,093

(March 1, 2022)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ROSA., Commissioner.--In two separate appeals,[1] petitioners appeal from action of the Board of Education of the Brentwood Union Free School District (“respondent board”); Richard Loeschner as superintendent; Wanda Ortiz-Rivera as assistant superintendent of bilingual education and student intake (“assistant 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 Dominic Florian, Lisa Markowski, Suzanne McGee, and Jessica Weiss.  Petitioners additionally seek removal of the superintendent and trustees from office.  Because the appeals and applications present similar issues of fact and law, they are consolidated for this decision.  The appeals must be dismissed, and the applications must be denied.

The record reflects that Dominic Florian, Lisa Markowski, Suzanne McGee and Jessica Weiss were hired by respondent board as teachers of English as a New Language (“ENL”) on various dates between 2016 and 2018.  In April 2018, petitioner Jackson sent her resume to the district in connection with a job fair hosted by the district on April 25, 2018.  At that time, petitioner Jackson was interested in an ENL teaching position.  While the assistant superintendent granted her an informal interview, her resume was not forwarded to district administration for further consideration.  This appeal ensued.  Petitioners’ request for interim relief was denied on December 16, 2020.

Petitioners argue that respondents unlawfully hired and compensated Dominic Florian, Lisa Markowski, Suzanne McGee, and Jessica Weiss, whom they allege were “illegally certified.”  Petitioners additionally argue that petitioner Jackson was “passed over” for the ENL positions held by Jessica Weiss and Dominic Florian in 2018 because she is African American.  Petitioners further claim that the district has a history of hiring uncertified and unqualified white candidates over more qualified African American candidates.  For relief, petitioners request that the Commissioner remove the superintendent and trustees for violations of board policy and failure to obey State laws and their oaths of office.  Petitioners also request the removal of the four allegedly unqualified teachers from their positions and the appointment of a distinguished educator to the district. 

Respondents contend that the appeals and applications must be dismissed for improper service and as untimely.  Respondents maintain that petitioners’ request for removal of unqualified teachers is moot as all of the teachers currently possess English to Speakers of Other Languages (“ESOL”) certification.  Respondents also contend that petitioners failed to produce evidence showing that the four teachers in question were unqualified.  Finally, respondents request that the Commissioner certify that all individual respondents acted in good faith.   

First, I must address the procedural issues.  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 belatedly add assertions that should have been raised 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.

Next, respondents contend that the appeals and applications must be dismissed for improper service.  This argument is two-fold.  First, respondents contend that petitioners could not avail themselves of the alternative service provision applicable during the time period of any movement restrictions or school closures directed by Executive Order during the COVID-19 crisis (see 8 NYCRR 275.8 [f]) because, at the time the appeals were commenced, the district was “open.”  For the reasons set forth in Appeal of Moss (60 Ed Dept Rep, Decision No. 18,001), I decline to dismiss the appeals and applications on this basis.[2]

Second, respondents argue that petitioners did not comply with the requirements of alternative service under 8 NYCRR 275.8 (f) because one appeal and application was served by priority mail instead of first class, while a copy of the second was sent and emailed on different days.  Respondents have not identified any prejudice arising from this technical noncompliance.  Therefore, I find that petitioners substantially complied with 8 NYCRR 275.8 (f) such that dismissal of the appeals and applications is not warranted (Appeal of D.M. and J.D., 61 Ed Dept Rep, Decision No. 18,031; see generally Appeal of Nappi, 57 id., Decision No. 17,300; Appeal of A.L.P., 43 id., Decision No. 15,006).

Nevertheless, the majority of petitioners’ claims must be dismissed 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).  The 30-day timeframe also applies to a removal application pursuant to Education Law § 306 (8 NYCRR 277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).

Petitioners primarily challenge the employment of four district teachers hired between 2016 and 2018.  Petitioners commenced the instant appeals and applications in December 2020, two years after the hiring of Jessica Weiss, the last of the four teachers to be hired, on July 24, 2018.  Petitioners fail to set forth good cause for the delay as required by 8 NYCRR 275.16.  Accordingly, the vast majority of petitioners’ claims must be dismissed as untimely.[3]  Petitioners’ claim that respondents continue to employ uncertified teachers, however, constitutes a continuing wrong to which the 30-day time limitation does not apply (Appeal of Moss, 60 Ed Dept Rep, Decision No. 18,006; Appeal of Folsom, 37 id. 347, Decision No. 13,876; Appeal of Tropia, 32 id. 606, Decision No. 12,929).  Therefore, this claim is addressed below.

Turning to the merits, Education Law § 3009 states that “no part of the school moneys apportioned to a district shall be applied to the payment of the salary of an unqualified teacher.”  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; 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).

Petitioners have not established that any of the teachers about whom they complain lacked appropriate certification at their time of hire or anytime thereafter.[4]  The record reflects that Lisa Markowski held an English Language Arts (“ELA”) 7-12 professional certificate and an ELA 5-6 extension professional “Ext/Anno” certificate as of the date of her hiring on July 6, 2016; Suzanne McGee held an ELA 7-12 initial certificate as of the date of her hiring on August 11, 2016;[5] and Jessica Weiss held an ESOL supplementary certificate as of the date of her hiring on July 24, 2018.  While petitioners argue that these certifications were insufficient to teach ENL, the assistant superintendent explains in an affidavit that Ms. Markowski and Ms. McGee were only appointed to “teach the ELA component in ELA/ENL classes” and that both teachers have never taught stand-alone ENL classes in the district prior to receiving their ESOL certification.  Additionally, Ms. Weiss possessed an ESOL supplementary certificate at the date of her hiring.  Therefore, petitioners have failed to establish that these teachers lacked, or continue to lack, appropriate certification.[6]

Additionally, the record supports a finding that the district satisfied all requirements attendant to Ms. Weiss’s request for a supplementary certificate (8 NYCRR 80-5.18 [a]).  At the time of her appointment, Jessica Weiss held, in addition to her ESOL supplementary certificate, an early childhood education (birth-grade 2) initial certificate and a childhood education (grades 1-6) initial certificate.  The superintendent informed the State Education Department (SED) that it sought to employ Ms. Weiss as of September 1, 2018 in an area with a demonstrated shortage of certified teachers; specifically, ESOL.[7]  Additionally, the district confirmed that as a condition of her employment, Ms. Weiss would be enrolled in an institution of higher education leading to an initial or professional certificate in the subject area sought.  On December 17, 2020, Ms. Weiss was issued an ESOL initial certificate. 

With specific respect to Dominic Florian, petitioner Moss posed almost identical arguments in a prior appeal (Appeal of Moss, 60 Ed Dept Rep, Decision No. 18,006).  In that appeal, petitioner Moss argued that Mr. Florian lacked appropriate certification at the time of his appointment.  Respondents conceded as much but indicated that he was no longer employed by the district as of January 11, 2021, the date of the answer.  The answer[8] in the present appeal, however, does not indicate that Mr. Florian was improperly certified or that he left the district’s employ—even though it is dated February 26, 2021.

This incongruity notwithstanding, petitioners have failed to meet their burden of proof.  The record reflects that Mr. Florian held an ELA initial certificate as of the date of his appointment on July 2, 2018.  Respondent board’s meeting minutes from July 2, 2018 show that he was appointed to an ENL position.  Nevertheless, the assistant superintendent affirms that Mr. Florian’s ELA 7-12 initial certificate “enabled him to teach the ELA component of an ELA/ENL class” and that he never taught stand-alone ENL classes in the district prior to receiving his ESOL supplementary certification, which was issued on December 19, 2020.  Petitioners submit no proof to the contrary.  Therefore, petitioners have also failed to prove that Mr. Florian lacked appropriate certification at the time of his hire, or at any time thereafter.

Given the above conclusions, there is no basis to conclude that the superintendent and trustees violated the Education Law or any other act pertaining to common schools.  Therefore, the applications for removal under Education Law § 306 must be denied.

Finally, respondents request that I certify that the individual respondents 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 so certify 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 individual respondents acted in bad faith, I hereby certify solely for the purpose of Education Law § 3811 (1) that the individual respondents are entitled to the requested certification.

I have considered petitioners’ remaining contentions and find them to be without merit.   

THE APPEALS ARE DISMISSED.

THE APPLICATIONS ARE DENIED.

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