In this appeal to the Commissioner of Education the Commissioner held that the Petitioner had not demonstrated that the Superintendent of the School District [Respondent] had "willfully violate the Education Law or
neglected his duties as a school officer" and dismissed Petitioner's application.
Concluding that the record
reflected that Respondent investigated the incident alleged by Petitioner and concluded that
there was nothing to support a finding of child abuse, which finding the Commissioner's decision notes was "a determination with which Petitioner
agrees", dismissed Petitioner's application seeking to have the Commissioner remove the Respondent from his position.
The Commissioner's decision is
set out below:
Decisions of the
Commissioner of Education
Application of JOHN
DOE for the removal of Dan Wilson as superintendent of the Catskill
Central School District.
Decision No. 18,521
(November 12, 2024)
Ferrara Fiorenza PC, attorneys for respondent, Cameron B.
Daniels, Esq., of counsel
ROSA., Commissioner.--Petitioner seeks the removal of Dan
Wilson as superintendent (“respondent”) of the Catskill
Central School District
pursuant to Education Law § 306. The application must be denied.
Petitioner is the parent of a child who attends respondent’s
high school (the “student”). On or about February 15, 2024, the student participated in a rehearsal
for the school musical “Cinderella.”
According to petitioner, a school
district employee offered tape to the students in a joking manner, and the
student proceeded to place a piece of tape on her own mouth. By contrast,
respondent indicates that he “received a report that a school staff member had
placed tape over [the] student’s mouth.” Upon receipt thereof, respondent
informed law enforcement and initiated an internal investigation. As part
of its investigation, the district’s director of human resources interviewed
several students, including petitioner’s child. According to an affidavit
submitted by the human resources director, petitioner’s child twice reported
that the school employee had placed tape on her mouth.
Following this investigation, respondent determined that the
incident did not involve child abuse as defined by Article 23-B of the
Education Law. This application ensued.
Petitioner argues that he and his spouse should have been
contacted prior to the student’s interview and that respondent’s “concern in
this situation was not for [his] child as an alleged victim, but rather to seek
punishment for two staff members.” Petitioner seeks respondent’s removal
based on his alleged mishandling of the tape incident.
Respondent contends that the application must be denied for,
among other procedural deficiencies, failure to include the required
notice. Respondent also seeks certification that he acted in good faith
in accordance with Education Law § 3811.
The application must be denied for insufficient
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).[1]
Even if the application contained the required notice, it
would be denied on the merits. The Commissioner of Education may remove a
school officer or member of a board of education from office when it is proven
to the satisfaction of the Commissioner that the officer or board member has
engaged in a willful violation or neglect of duty under the Education Law or
has willfully disobeyed a decision, order, rule, or regulation of the Board of
Regents or the Commissioner (Education Law § 306 [1]; see Application
of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of
Schenk, 47 id. 375, Decision No. 15,729).
Here, petitioner has not demonstrated that respondent
willfully violated the Education Law or neglected his duties as a school
officer. The record reflects that respondent reasonably investigated an
allegation that a staff member placed tape over a student’s mouth.
Moreover, respondent reasonably concluded that the incident did not
constitute child abuse—a conclusion with which petitioner agrees.[2]
Petitioner argues that he and
his spouse should have been contacted prior to the student’s interview and that
respondent’s “concern in this situation was not for [his] child as an alleged
victim, but rather to seek punishment for two staff members.”* Petitioner
seeks respondent’s removal based on his alleged mishandling of the tape
incident.
[* N.B. See Decisions of the Commissioner of Education, Decision 18,522, set out below this decision.]
Finally, respondent requests a certificate 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 application has been dismissed on procedural grounds without
any findings on the merits, I hereby certify that respondent is 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 the
parties’ remaining contentions.
THE APPLICATION IS DENIED.
[1] While
petitioner correctly notes that an appeal “shall not be dismissed for failure
to include the language” contained in 8 NYCRR 275.11 (a), that section is
inapplicable to applications for removal, which are governed by Part 277 of the
Commissioner’s regulations.
[2] Specifically,
petitioner indicates: “I am not suggesting in any way that my daughter
was actually harmed.”
END OF FILE
Decisions of the Commissioner of Education
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.
[1] Petitioner
also seeks the removal of respondent’s human resources director. However,
a human resources director is not a school officer subject to removal pursuant
to Education Law § 306.
[2] To
the extent that petitioner seeks relief on behalf of others, he lacks standing
to do so and has not met the criteria to bring a class appeal (8 NYCRR 275.2).
[3] Since,
petitioner was employed on a contractual, non-instructional basis, any right to
reinstatement would arise from the terms of his contract. Petitioner has
not submitted a copy of this contract or identified any relevant provisions
therein (see Appeal of Brosseau, 39 Ed Dept Rep 132, Decision No. 14,193).
END OF FILE