Appeal of MARCUS McGREGOR from action of the Board of Education of the Catskill Central School District regarding a personnel matter and application for the removal of Dan Wilson as superintendent and Jeremy Engelin and Ryan Osswald, as members of the Board of Education of the Catskill Central School District.

Decision No. 18,522

(November 12, 2024)

            Ferrara Fiorenza PC, attorneys for respondent, Cameron B. Daniels, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals his termination by the Board of Education of the Catskill Central School District (“respondent”) and seeks the removal of Dan Wilson as superintendent, and Jeremy Engelin and Ryan Osswald, as members of the board (“individual respondents”) (collectively, “respondents”).[1]  The appeal must be dismissed, and the application must be denied.

This appeal stems from the same factual background as Appeal of John Doe, 64 Ed Dept Rep, Decision No. 18,521, issued herewith.  Petitioner was employed by respondent as an independent contractor to assist in a musical production.  On March 15, 2024, respondent terminated petitioner’s contract for allegedly disclosing confidential information.  This appeal and application ensued.

Petitioner[2] argues that the district improperly handled an investigation and seeks the removal of the superintendent and two board members for their alleged misconduct in connection therewith.  Petitioner also seeks reinstatement to his contractor position, arguing that he did not receive training on how to ensure the confidentiality of student information.

Respondents argue that the appeal must be dismissed for lack of standing, as untimely, and for improper service.  On the merits, they assert that petitioner has not established any willful violation of law or neglect of duty that would warrant removal of the individual respondents.  Respondents further argue that they acted within their authority and followed appropriate procedures in investigating an incident involving alleged harm to a student.  Finally, respondents maintain that petitioner was permissibly terminated for violating its confidentiality policy.

First, I must address a procedural issue.  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.

Petitioner’s application for removal must be denied for lack of the required notice.  Section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832).  Thus, a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioner’s application lacks the required notice and, thus, must be denied (Appeal of Melton, 63 Ed Dept Rep, Decision No. 18,359; Appeal of M.B., 56 id., Decision No. 17,044).

The remaining relief sought by petitioner, reinstatement to his contractual position, is 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 did not commence the instant action until over 30 days past his termination and he offers no excuse for the delay.  Accordingly, the appeal must be dismissed as untimely (Appeal of Zwanka, 56 Ed Dept Rep, Decision No. 17,051; Appeal of M.B., 56 id., Decision No. 17,044).[3]

Finally, respondents request certification of good faith pursuant to Education Law § 3811 (1).  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1).  The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  Since the appeal has been dismissed on procedural grounds without any findings on the merits, I hereby certify that the individual respondents are entitled to the requested certification (e.g., Application of Karimi, 63 Ed Dept Rep, Decision No. 18,345; Appeal and Application of Petrocelli, 62 id., Decision No. 18,223).

In light of this determination, I need not address petitioner’s remaining contentions.

THE APPEAL IS DISMISSED.

THE APPLICATION IS DENIED.

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