Friday, February 26, 2016

Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position


Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position
Decisions of the Commissioner of Education, Decision #16,874

A resident [Resident] of the school district [District] asked the Commissioner of Education to remove the Superintendent of Schools [Superintendent] from the position. Resident alleged certain conduct that occurred while Superintendent was superintendent at another school district and alleged certain conduct while Superintendent of the District in support of the request for Superintendent’s removal from the position.

The Commissioner explained that a member of the board of education or a school officer may be removed from his or her office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the individual who is targeted for such removal “has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.”

The Commissioner ruled that Resident’s petition must be dismissed for procedural reasons. The Commissioner explained that Resident failed to include the notice requirements set out in  8 NYCRR 277.1(b) of the Commissioner’s regulations.

This provision requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office.  Resident failed to comply with the notice requirements of  §277.1(b), but instead used the notice prescribed in §275.11(a).* The Commissioner pointed out that a notice of petition seeking the removal of an officer which fails to contain the language required by §277.1(b) of the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended individual or individuals.

Notwithstanding the dismissal of Resident’s petition as a result of its procedural defect, the Commissioner addressed the Superintendent’s request that she issue a certificate of good faith pursuant to Education Law §3811(1)* for the purpose of authorizing the school board to indemnify the Superintendent for legal fees and expenses incurred in defending this proceeding.

The Commissioner said that it is appropriate to issue such a certification unless it was established on the record that the individual seeking such a certification acted in bad faith.

As Resident’s application was dismissed on procedural grounds and there had been no finding that Superintendent acted in bad faith, the Commissioner approved the request “solely for the purpose of Education Law §3811” as Superintendent “appears to have acted in good faith.”

* 8 NYCCR §275.11(c) requires that in the event the petitioner is seeking removal of a school officer, in addition to the notice required by 8 NYCRR §275.11(a) “the notice provisions of section 277.1 of this Title shall also apply.”

** §3811(1) sets out the procedures for seeking such indemnification but provides that an individual is not eligible for indemnification for legal fees and expenses incurred as a result of a criminal prosecution or an action or proceeding brought against him or her by a school district or board of cooperative educational services.

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