September 10, 2010

Appealing an administrative determination by the State Department of Education

Appealing an administrative determination by the State Department of Education
Appeal of Dean F. Goewey, Decisions of the Commissioner of Education, Decision #16,135

The State Education Department’s Office of School Personnel Review and Accountability denied Dean F. Goewey’s request for a change in venue with respect to a hearing to be held pursuant to Part 83* of the Commissioner’s Regulations [8 NYCRR 83]. Goewey filed an appeal with the Commissioner of Education in an effort to overturn the Department’s decision not to change the venue of the hearing.

The Commissioner dismissed Goewey’s appeal, explaining that a §310 appeal is not the appropriate forum to review either the determination of the hearing officer or the determinations of OSPRA staff. The Commissioner also noted that he had appointed the hearing officer “to conduct a Part 83 moral character hearing” on his behalf."

The Commissioner said that the proper forum to challenge such administrative actions is via “a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.”

As to the administrative proceeding itself, the Commissioner said that Goewey could appeal the administrative determination as provided by §83.5 of the Commissioner’s Regulations [8 NYCRR 83.5] within 30 days after receipt of notification of the findings and recommendations of the hearing panel.**

* Part 83 of the Commissioner's Regulations addresses “Determination of Good Moral Character” and, as a first step, requires that any information “indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, shall be referred by the chief school administrator having knowledge thereof to the professional conduct officer of the [Education] department.”

**
8 NYCRR 83.5 (a) addresses, in pertinent part, the right to appeal. It provides that “The certified individual or applicant may commence an appeal of the findings and recommendations of the hearing officer by filing the original appeal papers with the commissioner, with proof of service by regular mail upon the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of being served with such appeal papers, with proof of service by regular mail on the certified individual or applicant or the attorney of record of such certified individual or applicant.”

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16135.htm
.

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