Application seeking the removal of an employee of a School District
Decisions of the Commissioner of Education, Decision No. 17,274
A resident and taxpayer of the school district petitioned the Commissioner of Education to remove the school district's physical education director and/or athletic director pursuant to §135.4 of the Commissioner’s regulations.
The Commissioner denied the taxpayer's application, explaining that the Commissioner lacks the authority to grant the relief requested as the individual targeted for removal is an employee, not an officer subject to removal under Education Law §306.
In the words of the Commissioner: "I lack jurisdiction to do so. Education Law §306 authorizes the Commissioner to remove school officers under appropriate circumstances. For purposes of §306, "school officers" include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or "other school officer[s]." An athletic director, however, is a school district employee, not a school officer, and is thus not subject to removal under Education Law §306."
Addressing a number of fatal procedural defects, the Commissioner noted that even if the targeted individual were a school officer subject to her jurisdiction under Education Law §306 the defective notice of petition submitted by the taxpayer would warrant denial of the application.
The Commissioner further explained that the notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office. In this case, the petitioner failed to give such notice and, instead, used the notice prescribed under 8 NCYRR §275.11(a) for appeals brought pursuant to Education Law §310.
Further, said the Commissioner, "A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent. It is 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 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal."
The decision is posted on the Internet at: