September 08, 2010

Some procedural basics in perfecting an appeal to the Commissioner of Education

Some procedural basics in perfecting an appeal to the Commissioner of Education
Kathleen Vendel, et al., v the Board of Education of the Marion Central School District, Decisions of the Commissioner of Education, Decision #16,134

The decision of the Commissioner of Education in Vendel sets out a number of procedural elements that must be satisfied in order to perfect an appeal to the Commissioner. Significantly, a party's failure to comply with one or more of these requirements could prove fatal to the Commissioner's considering the merits of the appeal.

Some 100 residents of the Marion Central School District appealed the School Board decision concerning the public's participation at board meetings. The Board had adopted a policy limiting non-members of the Board interested in speaking at its meetings to three minutes. Also in Vendel's submission to the Commissioner was an appeal involving "certain interactions with the community” by the Board and an application seeking “the removal of various individuals” from the Board.

The Commissioner dismissed Vendel's appeal and application without considering the merits of the allegations, explaining:

1. The individuals filing an appeal must have standing. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Merely having status as a resident and a taxpayer in a school district is not sufficient to confer standing to challenge school board policies.

Except with respect to Vendel’s allegations concerning alleged harassment, said the Commissioner, “there has been no showing that any of the petitioners are personally aggrieved by the board policy or actions complained of.” The appeal, therefore, was dismissed for lack of standing, except with respect to Vendel’s claims relating to the harassment complaint.

2. Verification of the appeal. The appeal was defective as “neither the petition nor petitioners’ reply are properly verified.”

The Commissioner noted that 8 NYCRR §275.5 of the Commissioner's Regulations require all pleadings in an appeal to the Commissioner be verified.*

3. Failure to name a necessary party. To the extent that the petition seeks removal of individual board members petitioners have failed to join them as parties.

The Commissioner pointed out that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.**

4. Jurisdiction of the Commissioner. As to the “propriety of the actions of the Trooper” in the course of events leading to the appeal, the Commissioner said that the Trooper is not an officer or employee of the School District and thus is not subject to the jurisdiction of the Commissioner of Education.

5. Statute of limitations to file an appeal. The Commissioner commented that the petitioners challenge any actions in relation to the July 13, 2009 board meeting but was not commenced until September 1, 2009.

Citing 8 NYCRR §275.16, the Commissioner said that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”

The Commissioner did make one observation concerning one of the issues presented by Vendel “for the benefit of the parties” -participation of individuals at board meetings.

Regarding taxpayers and residents of a school district participating in board meetings, the Commissioner said that a board of education should, whenever possible and appropriate, consider public input on matters under consideration. However, the Commissioner also noted that a school board has the right to control the agenda at board meetings and “there is no statutory mandate that requires a board to permit public input at its meetings.”

* The affidavit of verification was stated to have been made “on the oath of Carol Moranz” but was signed by Vendel. Moranz was not a petitioner in this appeal and the Commissioner’s regulations require the petition to be verified under oath of at least one of the petitioners (see 8 NYCRR §275.5).

** Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and the petition so as to inform the individual that he or she should respond to the petition and enter a defense.

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16134.htm
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