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Thursday, June 25, 2015

Some issues to be mindful of when filing and prosecuting an appeal before the Commissioner of Education

Some issues to be mindful of when filing and prosecuting an appeal before the Commissioner of Education
Appeal of Guilaine Leger-Vargas, Decisions of the Commissioner of Education, Decision No. 16,771

Guilaine Leger-Vargus, a disappointed candidate in the 2012 annual election to a school board, alleged that certain school officials had engaged in conduct prior to the election that interfered with her campaign and the election.

Among the remedies Ms. Leger-Vargas sought by in her appeal to the Commissioner of Education was the removal of certain members of the school board and the school superintendent and the “reprimand and fine of [certain] district officials and employees.”  

The Commissioner said that the appeal must be dismissed and the application denied, noting, among others, the following procedural difficulties:

1.  Ms. Leger-Vargas submitted newspaper articles as exhibits to her petition.  The Commissioner said that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein” and such articles will not be considered “for the veracity of their content.”

2. Ms. Leger-Vargas’ reply to the school district’s answer may respond to new material or affirmative defenses set forth in the answer and is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition. The Commissioner said that those portions of a reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer will not be considered.

3. To the extent that a reply also addresses other appeals pending before the Commissioner, the Commissioner said that “such submission is improper and those portions will not be considered….”

4. Regarding Ms. Leger-Vargas’ memorandum of law, the Commissioner said that a memorandum of law should consist of arguments of law and may not be used to add belated assertions or exhibits that are not part of the pleadings.

5. As to the relief sought by Ms. Leger-Vargas, the Commissioner said that, to the extent that she seeks to have the Commissioner reprimand and fine district employees, there is no provision in the Education Law authorizing the imposition of a reprimand or the imposition of a fine of a board member, a school officer or a member of the school district staff's by the Commissioner of Education. The Commissioner observed that the board of education has the sole authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner of Education.

Turning to the merits of Ms. Leger-Vargas' appeal, the Commissioner explained that to invalidate the results of a school district election, the petitioner seeking have such results declared invlid must establish not only that irregularities occurred, but also a probability that any such irregularities actually affected the outcome of the election. 

However, noted the Commissioner, “It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results.

Additionally, 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 the petitioner seeks relief.  On this record, said the Commissioner, Ms. Leger-Vargas “has not established that an irregularity occurred or that the outcome of the election was affected by the alleged actions of [school officials].” 

Addressing a number of other issues raised by Ms. Leger-Vargas in her appeal, the Commissioner pointed out that:

To the extent that Ms. Leger-Vargas raises claims in her appeal that do not arise under the Education Law, such as acts of alleged defamation and slander, the Commissioner of Education lacks jurisdiction over such claims and, therefore, need not address them.

To the extent that Ms. Leger-Vargas seeks “an apology” from  a school board member, an officer or employee of the school district, the Commissioner lacks authority to order a member board of a education, a school officer or school district employee to do so.

To the extent that Ms. Leger-Vargas raised claimed violations of the Freedom of Information Law (FOIL), §89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner of Education.

The Commissioner, noting that Ms. Leger-Vargas’ appeal must be dismissed and her application for removal of certain school officers and officials denied, said “the parties are reminded that public officials and employees can and should avoid unnecessary contention, particularly by ensuring that their actions cannot be interpreted as offensive to any specific individual or group.”

The decision is posted on the Internet at:

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