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Tuesday, February 12, 2013

Some procedural requirements to keep in mind when filing an appeal to the Commissioner of Education

Some procedural requirements to keep in mind when filing an appeal to the Commissioner of Education
Appeal to the Commissioner of Education, Decision No. 16,455

According to the decision, the petition submitted in this appeal to the Commissioner of Education consisted of a request for an investigation. Included with the petition were various exhibits such as “a collection of letters, emails, Facebook postings, petitions, and questions presented to the [school] board.”

Initially the Commissioner noted that a petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself [or herself] entitled,” citing 8 NYCRR §275.10.

Further, cautioned the Commissioner, the statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of. In the event a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed

In the event a petitioner is not represented by counsel the Commissioner noted that “a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party.

The Commissioner however dismissed this appeal as untimely. Although the petitioner conceded that she had not filed the appeal within 30 days from the making of the decision or the performance of the act complained of, she asked the Commissioner to excuse her delay contending that “she could not gather documents needed to file her appeal.”

While a delay may be excused by the Commissioner “for good cause shown,” in this instance the Commissioner said that he found “no basis to excuse petitioner’s delay” and ruled that the appeal must be dismissed as untimely.

Commenting on the relief sought, the Commissioner commented that the only relief the petitioner sought was an investigation into the school board's and certain administrators' alleged “inappropriate decisions, actions, and lack of leadership and accountability....”  

However, an appeal to the Commissioner is appellate in nature and does not provide for investigations. Accordingly it appears that even had this appeal been timely filed, it would have been dismissed because, in the words of the Commissioner, “the sole relief sought by petitioner is beyond the authority of the Commissioner to grant."

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume52/d16455.html

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