Appeal of TONY RUSSO from action of the Board of Education of the Spencerport Central School District et al. regarding a personnel matter.[1]

Decision No. 18,368

(January 8, 2024)

Harris Beach PLLC, attorneys for respondent, Sara E. Visingard, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges a determination of the Board of Education of the Spencerport Central School District (“respondent”) denying his request for a name-clearing hearing.  The appeal must be dismissed. 

Petitioner previously served as a wrestling coach in respondent’s district.  Petitioner contends that respondent disseminated allegations about him based upon an investigation into its wrestling program.  It appears that petitioner was dismissed from his role following this investigation.  In a letter to the superintendent dated April 4, 2023, petitioner requested a name-clearing hearing.  Respondent denied this request on April 19, 2023.  This appeal ensued.

Petitioner contends that he is entitled to a name-clearing hearing, because he was “accused of misconduct” that impugned his reputation and integrity.  He further asserts that “there is a written document which states the allegations and ... the allegations were referred to” during the course of respondent’s January 10, 2023 meeting.  He requests a name-clearing hearing and an admission by respondent that it acted improperly.

Respondent contends that the appeal must be dismissed as untimely and for improper service.  On the merits, respondent contends that petitioner is not entitled to a name-clearing hearing.  Respondent further argues that the Commissioner lacks authority to direct a school district or its employees to admit to wrongdoing.

The appeal 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).  Petitioner’s appeal of respondent’s April 19, 2023, determination is over four months late.  Petitioner does not identify any good cause for the delay.  Accordingly, the appeal must be dismissed as untimely (Appeal of Young Advocates for Fair Education, 63 Ed Dept Rep, Decision No. 18,356; Appeal of Schlesinger, 61 id., Decision No. 18,128; Appeal of Handsman, 58 id., Decision No. 17,596).

Even if the appeal was not dismissed on procedural grounds, it would be dismissed on the merits.  A public employee is only entitled to a name-clearing hearing when her or his “employer creates and disseminates a false and defamatory impression about the employee in connection with ... termination” (Codd v. Velger, 429 US 624, 628 [1977]; see also Lentlie v. Egan, 61 NY2d 874, 875 [1984]).  Respondent’s superintendent denies that the district made stigmatizing statements about petitioner, asserting that the reasons for petitioner’s separation from service as a wrestling coach were not publicly disclosed.  To the extent petitioner alleges that district officers or employees made defamatory statements at the January 10, 2023 board meeting, respondent’s April 19, 2023 letter addressed this claim as follows:

...the District did not “publicly disclose” any information about you or your termination from coaching.  During a “privilege of the floor” session of a board meeting in January, an individual who spoke “in your defense” publicly disclosed information about you—the District did not disclose any information about you at that meeting or at any meeting.

Petitioner has presented no evidence to the contrary.  As such, his appeal must be dismissed.

I have considered petitioner’s remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED. 

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