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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

December 9, 2016

A procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect


A procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

In this appeal L.B. requested the Commissioner remove certain school personnel.  The removal of respondent’s board president, Superintendent Kelly, and Principal Sykes.  However, said the Commissioner, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such. The Commissioner explained that joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Here the record indicated that the petition was personally served on the district clerk, the School Superintendent and a School Principal Sykes but the board president was neither named in the caption nor was he served with a copy of the petition or a notice of petition.  As L.B. request to remove the board president was dismissed “for failure to join him as a necessary party.”

Another procedural defect noted by the Commissioner: L.B.’s demands to remove school officers failed to comply with §277.1 of the Commissioner’s regulations. 

§277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for the respondent’s removal from his or her office.

L.B., however, failed to comply with the notice requirements set out in §277.1(b) but, instead, used the notice prescribed under §279.3 for a petition seeking review by a State Review Officer of the determination of an impartial hearing officer concerning the identification, evaluation, program or placement of a student with a disability pursuant to Education Law, Article 89 and Part 200 of the Commissioner’s regulations. 

The Commissioner explained that a notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent.

To the extent that L.B. sought the removal of the School Principal, the Commissioner does not have jurisdiction to remove a School Principal. Education Law §306 authorizes the Commissioner to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officers.

However, Education Law §2(13) defines “school officer” by specifically identifying a number of positions and including any “other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.” 

School Principals, said the Commissioner, are district employees and not school officers subject to removal under §306 and thus the Commissioner of Education lacks jurisdiction to remove a School Principal.

As to L.B.’s requests that the Commissioner initiate an investigation concerning aspects of the appeal, the Commissioner explained that such an appeal does not provide for investigations.

Appeal of L.B., Decisions of the Commissioner of Education, Decision #16,998


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