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Monday, November 23, 2015

Appeal to the Commissioner of Education dismissed for a number of procedural omissions


Appeal to the Commissioner of Education dismissed for a number of procedural omissions
Appeal of Michael Nelson, regarding a district policy and application for the removal of the Board of Education of the Cherry Valley - Springfield Central School District, Decisions of the Commissioner of Education, Decision No. 16,845

In this appeal to the Commissioner of Education Michael Nelson alleged that Cherry Valley - Springfield Central School District [1] permitted the district’s superintendent to use a district vehicle for personal use in violation of district policy; [2] failed to hold the superintendent accountable for his alleged violation of district policy; and [3] failed to properly investigate the matter. 

Nelson also asked the Commissioner to order the school district “to reimburse taxpayers for the reasonable expense resulting from the superintendent’s alleged improper use of a district vehicle;” investigate the alleged unauthorized use of district property; and order “the removal of members of the board.”

The Commissioner did not address the merit of Nelson’s appeal, ruling that the appeal “must be dismissed and the application denied” for a number of procedural reasons, including the following:

1. Nelson sought to bring this proceeding on behalf of other taxpayers but an appeal may only be maintained on behalf of a class only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class and the petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class. The Commissioner found that Nelson’s “pleadings are entirely devoid of any allegations addressing these criteria” and denied class status.

2. An appeal to the Commissioner must be dismissed and the application denied for failure to join necessary parties, i.e. a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.” In this instance, said the Commissioner, Nelson did not serve the individual board members he sought to have removed from office nor did he serve the superintendent, thus he failed to join necessary parties. The record indicates that Nelson served only the district, by personally serving its clerk.  There is no indication that any individual board members or the superintendent were served with a copy of the notice of petition and petition.  

3. The Commissioner said Nelson’s appeal must also be dismissed with respect to his demand that the Commissioner investigate the alleged unauthorized use of district property as appeal to the Commissioner is appellate in nature and does not provide for investigations.

4. As to Nelson’s seeking an award of monetary damages, costs or reimbursement of expenses in prosecuting his appeal, the Commissioner said that she “has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume55/d16845

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

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

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