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January 7, 2011

Commissioner of Education does not have jurisdiction to resolve FOIL or Title IX appeals

Commissioner of Education does not have jurisdiction to resolve FOIL or Title IX appeals
Application of Gary Berman to remove a member of the Boards of Education of the Valley Stream Central High School District and the Valley Stream Union Free District No. 13., Decisions of the Commissioner No. 15,537

Gary Berman asked the Commissioner of Education to remove Dr. Frank Chiachiere from his positions as president and member of the Board of Education of the Valley Stream Central High School District and as a member of the Board of Education of the Valley Stream Union Free School District No. 13. Berman, in support of his request, alleged that that Dr. Chiachiere ignored, and has permitted district officers to ignore, the requirements of the State Freedom of Information Law (Public Officers Law §§84-90) (usually referred to as “FOIL”) and Title IX of the Education Amendments of 1972 (see 20 USC §1681 et seq.).

The Commissioner said that Berman’s complaints involving alleged violations of FOIL requests in January 2006, must be dismissed because §89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York. Accordingly, alleged FOIL violations may not be adjudicated in an appeal to the Commissioner.

Similarly, the Commissioner said that he did not have jurisdiction to adjudicate Title IX claims.

However, the Commissioner said that there was one additional administrative matter to consider in connection with Berman’s appeal -- Dr. Chiachiere’s request that the Commissioner grant him a certificate of good faith pursuant to Education Law §3811(1).

Granting such a certificate would allow the school board to indemnify Dr. Chiachiere for legal fees and expenses he incurred in defending a proceeding arising out of the exercise of his powers or performance of his duties as a member and, or, president of the board.

The Commissioner said that “[i]t is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith. Finding no evidence of bad faith on the part of Dr. Chiachiere in record before him, the Commission ruled that Dr. Chiachiere was entitled to receive a certificate of good faith.

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