Tuesday, March 25, 2014

Some critical procedural elements to be satisfied in order to provide the Commissioner jurisdiction to consider an application to remove a school board member or school district officer

Some critical procedural elements to be satisfied in order to provide the Commissioner jurisdiction to consider an application to remove a school board member or school district officer
Application for removal of the President and Member at Large of a school board. Decisions of the Commissioner of Education, Decision 16,594

The Commissioner never reached the merit of Petitioner's application seeking the removal of the President and member of the school board alleging that the individual was guilty of neglecting her duties, willfully violating the law on various; violating board policies concerning the conduct of board meetings and the supervision, management, and implementation of district business, including staffing, contractual matters, and legal obligations as well violating the Open Meetings Law and breaching her fiduciary duties to the school district. Finding that  Petitioner failed to satisfy certain procedural requirements, the Commissioner dismissed Petitioner's application.

Among the procedural omissions commented on by the Commissioner were the following:

1. An application must be timely filed as an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act [or omission] complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16). The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1)

2. A removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurredmore than 30 days before the application was instituted.*

3. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner, citing 8 NYCRR §276.5. The Commissioner explained that although this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent that are otherwise untimely.

4. The Commissioner will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the application.

5. The late filing of memoranda of law may be permitted by the Commissioner, in his sole discretion, upon written application setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the appeal (see 8 NYCRR §276.4[a]).

6. Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office (8 NYCRR §277.1[b]) and the failure to comply with §277.1(b) is a fatally defective and does not secure jurisdiction over the intended respondent.** The Commissioner noted that the Petitioner used the notice prescribed under §275.11(a) for an appeal brought pursuant to Education Law §310, explaining that the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal of the application. 

7. In the event the petitioner claims that his or her petition is timely because the respondent’s conduct constitutes a continuing wrong, the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful the employment of an unqualified individual or certain ongoing expenditures under an austerity budget that did not comply with the law.

8. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief (8 NYCRR §275.10)

One issue, however, was addressed relevant to this application was considered on the merits -- the Respondent’s request that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1).

The Commissioner, noting that such certification is solely for the purpose of authorizing a school board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member, explained that it is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith.

The Commissioner granted the Respondent's request in view of the fact the application in this instance was denied on procedural grounds and there has been no finding that the Respondent acted in bad faith, indicating that he did so solely because, for the purpose of Education Law §3811(1), respondent “appears to have acted in good faith.”

* Here petitioner asserted that his delay should be excused because he “wanted to give an opportunity for Respondent to resign in light of” his  allegations. However, the petitioner must establish to the satisfaction of the Commissioner that there was “good cause for [the] delay.”
** The Commissioner noted that the applicant used the notice prescribed under §275.11(a) for an appeal brought pursuant to Education Law §310.

The decision is posted on the Internet at:

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Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

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Layoff, Preferred Lists at http://nylayoff.blogspot.com/


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