Betsy Combier
Appeal of ROBERT BASIL, on behalf of MARK BASIL, from
action of the Board of Education of the Hunter-Tannersville Central School
District regarding the conduct of a teacher.
Decision No. 13,929
(May 4, 1998)
Hogan & Sarzynski, LLP, attorneys for respondent,
Edward
Sarzynski, Esq., of counsel
MILLS, Commissioner.--Petitioner appeals the refusal of the
Board of Education of the Hunter-Tannersville Central School District
("respondent") to direct a classroom teacher to apologize to his son,
Mark, for statements that she made about him. The appeal must be dismissed.
According to the petition, on May 2, 1996, Mark, then a
high school senior in respondent’s district, traveled with his senior class to
Disneyworld in Florida. Prior to departure, respondent’s staff searched the
students’ luggage for contraband. No illicit drugs were found.
Later that day, art teacher, Ritamary Vining, informed a
senior in her ceramics class that, following the search of his luggage, Mark
was arrested for smuggling illegal drugs. She reportedly repeated that
information to several other students in her 9th grade studio art class.
On June 23, 1996, petitioner reported the incident to James
Gaudette, the high school principal, and, at the request of the principal,
identified the students to whom the statements had been made in subsequent
correspondence. Petitioner met with Principal Gaudette in August 1996. Three
months later, after failing to receive notice that any remedial actions had
been taken on his complaint, petitioner requested to meet with the principal
and respondent board. Ostensibly in preparation for that meeting, Principal
Gaudette requested permission to share petitioner’s letters with Ms. Vining.
Petitioner denied his request, citing possible reprisals against the students
named in the letters.
Petitioner met with respondent on December 19, 1996, and
with respondent’s superintendent on January 12, 1997 and January 20, 1997
concerning an apology by Ms. Vining. Following those meetings, Superintendent
Pezak promised that he would attempt to convince Ms. Vining to issue a written
apology. On February 12, 1997, Superintendent Pezak notified petitioner that
Ms. Vining had refused to apologize. Thereafter, petitioner wrote to respondent
and requested that it direct Ms. Vining to apologize to Mark and to recant her
statements. On March 6, 1997, respondent informed petitioner, by telephone,
that his request was denied.
Petitioner commenced this appeal on March 14, 1997. The
petition requests only that I order the Board to direct Ms. Vining to issue the
requested apology and recantation. The petition, however, does not name Ms. Vining
as a respondent.
Respondent submits a comprehensive response to the
petition, detailing the district’s investigation of the matter and efforts to
resolve the issues raised in petitioner’s complaint. According to respondent,
on July 12, 1996, Principal Gaudette spoke with the senior named in
petitioner’s letter. The student substantially confirmed the incident, but
added that the matter had been a practical joke, which Ms. Vining had
initiated. In addition, Principal Gaudette met with Ms. Vining and the Union
President on September 3, 1996. Ms. Vining admitted that she had made the
statement, but noted that she had done so in jest. At that meeting, Principal
Gaudette informed Ms. Vining that she had demonstrated a lack of professional
judgment and cautioned her against repeating such conduct.
Moreover, following petitioner’s appearance before the
board, respondent offered to organize a meeting between Mark and Ms. Vining, at
which Superintendent Pezak would mediate. Petitioner declined the offer. Later,
Superintendent Pezak requested that Ms. Vining consider apologizing to Mark,
but she declined to do so upon the advice of the Union and her attorney.
Respondent contends that its investigation was adequate and
that it acted appropriately in admonishing the teacher. Respondent further
contends that the appeal should be dismissed as untimely and for failure to
name a necessary party. In addition, respondent maintains that I lack the
authority to direct an apology.
Respondent maintains that petitioner’s appeal is untimely
inasmuch as "[t]he action complained of involving the teacher occurred on
May 2, 1996, the complaint was not made to the district until June 23, 1996,
and the board meeting occurred on December 19, 1996." An appeal to the
Commissioner of Education, pursuant to Education Law "310, must be
commenced within thirty days from the making of the decision appealed or the
performance of the act complained of, unless excused by the Commissioner for
good cause shown (8 NYCRR "275.16). The time to commence an appeal runs
from the date of the decision under review (Appeal
ofRagot, 35 Ed Dept Rep 299; Appeal of Keen, 32 id. 299; Appeal of Magee, 30 id. 479). Here, while petitioner met in
executive session with the board on December 19, 1996, respondent did not rule
on petitioner’s request for an apology until March 6, 1997, when the
superintendent notified petitioner that the board would not direct Ms. Vining
to apologize. Thus, the time to appeal respondent’s refusal to direct an
apology began to run on March 6, 1997, and this appeal, commenced on March 14,
1997, is timely.
The appeal must be dismissed, however, for failure to join
Ms. Vining as a necessary party. The relief requested by petitioner is directed
at Ms. Vining, who engaged in the alleged inappropriate behavior. The rights of
this teacher, therefore, would be adversely affected by a determination in
petitioner’s favor regarding the relief he seeks. Accordingly, she is a
necessary party to this appeal and should have been served with a copy of the notice
and petition. Inasmuch as petitioner failed to join her as such, the appeal
must be dismissed (Appeal of Catherine B.,
37 Ed Dept Rep 34; Appeal of Smith, 34 id. 346; Appeal of Sanfilippo, 33 id. 500).
The appeal must also be dismissed on the merits. Petitioner
asks only that I direct respondent to order Ms. Vining to apologize and retract
her statements about Mark. There is no legal basis for demanding such relief (Appeal of Ingraham, 32 Ed Dept Rep 191).
Moreover, to the extent that petitioner seeks my intervention in obtaining an
apology from Ms. Vining, petitioner, in effect, is asking that I engage in some
form of discipline against the teacher. I have previously held that it is the
board of education which has the authority to take such disciplinary action,
not the Commissioner. Moreover, the board has broad discretion to determine
whether disciplinary action against an employee is warranted (Appeal of Catherine B., supra; Appeal
of Cardinal, 34 Ed Dept Rep 76; Appeal of Allert, 32 id. 538), and, where it decides that
disciplinary action is not warranted, the board must have a reasonable basis to
support its conclusion (Appeal of Cardinal, supra; Appeal
of Allert, supra; Appeal of Kantor, 31 Ed Dept Rep 319).
The record before me demonstrates that respondent promptly
investigated petitioner’s allegations, met with petitioner on more than one
occasion, sought an opportunity to mediate a meeting between Mark and Ms.
Vining, cautioned the teacher that further incidents of this nature would not
be tolerated and attempted to obtain the apology which petitioner seeks.
Therefore, I conclude that respondent’s actions were reasonable and constituted
an appropriate response to petitioner’s complaint and request (see, e.g., Appeal of Sanfilippo, supra).
Nevertheless, respondent should be aware that the public
humiliation of a student is not acceptable conduct for a teacher (see, Appeal of Ingraham, 32 Ed Dept Rep 191; Appeal
of Board of Educ. Of Hoosick Valley Central School Dist., 28 id.
429). The role of the educator regarding the social and emotional development
of school age children is as important as the teacher’s role in achieving the
academic goals of education. The teacher is responsible for providing academic
instruction to children while fostering in them a positive self-image and
self-confidence. Here, the teacher admittedly made the disparaging remark about
the student. Such action should not be tolerated (see, Appeal
of Board of Educ. Of the Hoosick Valley Central School Dist., supra).
THE APPEAL IS DISMISSED.
