Appeal of MICHAEL MUSIC from action of the Board of Education of the South Glens Falls Central School District and Kristine Orr, as superintendent, regarding a personnel matter.

Decision No. 18,421

(June 26, 2024)

Girvin & Ferlazzo, PC, attorneys for respondent, Ryan P. Mullahy, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges actions of the Board of Education of the South Glens Falls Central School District (“respondent”) and its superintendent (collectively, “respondents”) regarding a personnel matter.  The appeal must be dismissed.

Petitioner has been employed by the district since 2006.  He received tenure as a physical education teacher in 2009.  From 2006 until the events described herein, petitioner taught physical education at the high school in respondent’s district.

Respondent’s policy 4810, “Teaching About Controversial Issues” provides that “[i]n the classroom, matters of a controversial nature shall be handled as they arise in the normal course of instruction and not introduced for their own sake. Such issues shall be neither sought nor avoided.”  Policy 4810 further provides that “[w]hen presenting various positions on a controversial issue, the teacher shall take care to balance major views and to assure that as many sides of the issues as possible are presented in a fair manner, with no position being espoused by the teacher as the only one acceptable.”

In June 2022, a student made a formal complaint against petitioner.  The complaint alleged that petitioner made derogatory remarks to students in violation of the Dignity for All Students Act (the “Dignity Act”).  

Respondents commenced a Dignity Act investigation and placed petitioner on paid administrative leave on June 6, 2022.  On July 15, 2022, petitioner met with district representatives and responded to the allegations against him.[1]  Immediately following this meeting, respondents restored petitioner from paid administrative leave.

As a memorialization of the July 15 meeting, respondent issued a counseling memorandum to petitioner dated August 2, 2022.  The memorandum advised that the investigation had concluded and, “although a technical violation of [the Dignity Act] was not found,” petitioner’s behavior “was inconsistent with the [d]istrict’s expectations for personnel and in violation of at least one policy relating to instruction and curriculum (i.e., Policy #4810).”  The memorandum further advised that, going forward, petitioner should refrain from engaging in “‘debates’ and/or conversations about ‘controversial’ political and societal topics” that fell outside the scope of the physical education curriculum.  The memorandum was added to petitioner’s personnel file.

Thereafter, on September 5, 2022, petitioner sent respondents a lengthy document entitled “Letter of Counsel Rebuttal and Complaint” (“rebuttal letter”).  Petitioner characterized the rebuttal letter as a “formal complaint” and challenged respondents’ determination that his remarks constituted “inappropriate and controversial conversation” in violation of district policy.  Petitioner further alleged that he was “bullied” by respondents’ investigation and his placement on paid administrative leave.  He further claimed that he was “made to feel “alienated from [his] profession, ... colleagues, and ... past and future students.”

Respondent investigated the claims in petitioner’s rebuttal letter.  By letter dated October 24, 2022, respondent’s assistant superintendent concluded that the superintendent had not harassed or discriminated against petitioner.  On December 1, 2022, petitioner appealed the assistant superintendent’s determination to respondent. 

In a written determination dated May 3, 2023, respondent denied petitioner’s appeal, stating that it found “no basis to disturb the findings” in its October 24 determination.  This appeal ensued.

Petitioner alleges that he was wrongfully suspended and that the counseling memorandum constituted an impermissible reprimand imposed without the procedural protections of Education Law § 3020-a.  Petitioner further alleges that respondents discriminated against his religious beliefs in violation of Title VII of the Civil Rights Act of 1964 and that the restrictions imposed upon him by the counseling memorandum violate his First Amendment rights.  For relief, petitioner seeks removal of the counseling memorandum and any mention of his suspension from his personnel file as well as a name-clearing hearing.  Petitioner additionally seeks unspecified relief “for neglect of duties in the form of remediation, training,” and to prevent “future retaliation” against him.[2]

Respondents allege that the appeal is untimely.  Respondents further allege that any claims against the superintendent must be dismissed for lack of personal service.  Respondents also contend that the Commissioner lacks jurisdiction over this appeal and deny that petitioner is entitled to any relief.

Initially, I must address several 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, respondent argues that the appeal must be dismissed as untimely.  An appeal 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; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). 

Petitioner served the instant petition within 30 days of respondent’s May 3 determination, which was transmitted to him via email on May 5.  I am unpersuaded by respondents’ contention that the May 3 determination was unrelated to the counseling memorandum and petitioner’s placement on administrative leave.  Rather, the determination stemmed from petitioner’s rebuttal letter, which purported to challenge the memorandum and his placement on paid administrative leave in addition to asserting allegations of harassment and discrimination by the superintendent in connection therewith.  In fact, petitioner’s rebuttal letter asserts that the actions taken by respondents in investigating the Dignity Act allegations against him constituted discrimination.  By engaging with petitioner through the appeal process, respondents effectively entertained petitioner’s request for reconsideration and issued a new, final decision on May 5, 2023 (see Appeal of Szczepanski, 60 Ed Dept, Decision No. 17,940; Appeal of Clarey, 59 id., Decision No. 17,703; Appeal of Skiff, 57 id., Decision No. 17,191).  Under these circumstances, I decline to dismiss the appeal as untimely.

However, any claims directed toward the superintendent must be dismissed due to lack of personal service (8 NYCRR 275.8 [a]).  According to petitioner’s affidavit of service, the process server delivered a copy of the petition to the district clerk, who is only authorized to accept service on behalf of the board.  Respondents submit affidavits indicating that the petition was not served on the superintendent or anyone else authorized to accept service on her behalf.  Thus, the appeal must be dismissed as against the superintendent (see Appeal of T.G., 57 Ed Dept, Decision No. 17,195; Appeal of Houdek, 47 id. 415, Decision No. 15,740).

Turning to the merits, 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).

Petitioner first alleges that respondent violated Education Law § 3020-a by placing him on paid administrative leave without first filing charges against him.  A board of education may place a “teacher or other employee” on administrative leave “until the next regular meeting of such board, when all facts relating to the case shall be submitted to such board for its consideration and action” (Education Law § 1711 [2] [e]; see Appeal of Doe, 58 Ed Dept Rep, Decision No. 17,507).  Thereafter, the board must file charges under Education Law § 3020-a or restore the teacher to his or her position “within a reasonable time” (Appeal of Parker, 56 Ed Dept Rep, Decision No. 17,054; see also Appeal of Kavanaugh, 55 id., Decision No. 16,897).  

Here, respondents placed petitioner on paid administrative leave from June 6 to July 15, 2022 while it investigated the student’s Dignity Act complaint.  Respondents further assert that, at a regular meeting of the board on June 21, 2022, the board approved of petitioner’s suspension until the district completed its investigation.  Respondent concluded the investigation less than a month later, after which time petitioner was restored to active status.  Thus, petitioner has failed to prove that respondent placed him on administrative leave for an unreasonable amount of time (compare Appeal of Parker, 56 Ed Dept Rep, Decision No. 17,054 [suspension for over a year without filing of charges held unlawful] and Appeal of Kavanaugh, 55 id., Decision No. 16,897 [suspension for over 19 months prior to filing of charges held unlawful]).

With respect to the counseling memorandum, tenured teachers may only be disciplined following a hearing under Education Law § 3020-a.  In Holt v Board of Educ., Webutuck Cent. Sch. Dist., et al.,[3] the Court of Appeals articulated a distinction between “admonitions to a teacher [that] are critical of performance” and “disciplinary determinations of a punitive nature.”  The former, intended to address “relatively minor breach[es] of school policy,” may be imposed by management in its discretion while the latter may only be imposed following a hearing.  The Commissioner has identified two primary factors to be considered in determining whether written criticism constitutes an impermissible reprimand:  (1) whether the letter is directed towards an improvement in performance or a reprimand for prior misconduct; and (2) the severity of the misconduct and the admonition/reprimand (Appeal of Rogers, 63 Ed Dept Rep, Decision No. 18,364; Matter of Richardson, 24 id. 104, Decision No. 11,333).

Applying these factors, I find that the counseling memorandum constituted an administrative evaluation.  With respect to the first factor, the superintendent reminded petitioner of his obligation to act professionally and to comply with policy 4810 in the future.  Specifically, the superintendent directed petitioner to refrain from debating controversial topics with students, explaining that “[i]f a student initiates such debate and/or conversation with you, you are to redirect the student back to the curriculum and notify [d]istrict administration should the student be insubordinate or disrespectful following such directive.”  Respondent’s directives were prospective in nature and, thus, calculated to achieve improvement in petitioner’s performance (see Appeal of M.D., 47 Ed Dept Rep 51, Decision No. 15,623).

With respect to the second factor, the nature of the misconduct was relatively minor:  petitioner’s unnecessary interjection of his opinions—on topics including finances, politics, and government—into discussions that had no relationship to physical education class.  Notably, respondents’ investigation concluded that these remarks did not rise to a violation of the Dignity Act.  Respondents’ admonition to petitioner, which was factual in nature, explained why petitioner’s actions and statements were inconsistent with board policy and the district’s expectations.  As such, there is no basis to expunge the counseling memorandum from petitioner’s personnel file (see Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,236; Appeal of M.D., 47 id. 51, Decision No. 15,623). 

Finally, petitioner requests a name-clearing hearing.  A public employee is only entitled to such a hearing when his or her “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 Matter of Lentlie v Egan, 61 NY2d 874, 875 [1984]).  Petitioner was not terminated and there is no evidence in the record that respondents publicly made any defamatory or stigmatizing comments about petitioner in connection with his involuntary transfer. 

To the extent they are not addressed herein, I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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