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April 10, 2018

The Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions


The Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions
Appeal of April Trojahn, Decisions of the Commissioner of Education, Appeal #17,360

The Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions. Listed below are ten common procedural errors or omissions that will result in the Commissioner of Education  declining to consider the merits of a §306 appeal:

1. A notice of petition that fails to comply with 8 NYCRR §277.1(b) is a fatal defective and does not secure jurisdiction over the intended individual. Such notice of petition  alerts a party to the fact that he or she is the subject of a proceeding and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal of the application.

2. The claim is beyond the jurisdiction of the Commissioner in an appeal being  brought pursuant to Education Law §310.

3. The claim has been untimely filed and such the failure to timely file the application has not been excused. For example, if an appeal to the Commissioner must be commenced within 30 days from the making of a decision or the performance of the act complained of, a delay in filing the application may excused by the Commissioner for good cause shown.

4. The Commissioner lacks jurisdiction. For example, the Commissioner will not adjudicate claims which may be raised in a court of competent jurisdiction nor impose discipline on district employees as employee discipline is within a school district's exclusive jurisdiction and generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts.

5. If a petition seeks to have the Commissioner discipline a named individual who is a "school district employee" rather than a "school officer," school employees are not subject to discipline by the Commissioner pursuant to Education Law §306.* The Commissioner lacks jurisdiction to impose discipline on BOCES and school district employees, which includes the placement of letters of reprimand in an employee’s file. Such employee discipline is within a BOCES' or school district’s exclusive jurisdiction and generally subject to procedures established in statute or in applicable collective bargaining agreements and, or, employment contracts.

6. A necessary party has not been served. A necessary party is one whose rights would be adversely affected by a determination of an appeal in favor of a petitioner and must be joined as such. "Joinder" requires that an individual be clearly named as a respondent in the caption of the appeal 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.

7. In the event the appeal seeks the removal of a school officer, the notice accompanying a removal application must specifically advise the school officer that an application is being made for his or her removal from office. For purposes of Education Law §306, “school officers” include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or “other school officer[s].” The Commissioner of Education lack jurisdiction to remove a school district employee who is not a school officer as so defined.

8. The petition submitted to the Commissioner's Office of Counsel has not been "verified."

9. There must be proper service of the petition and the affidavit of service must be filed with the petition indicating that the petition was served as required by 8 NYCRR §275.8(a). §275.8(a) is set out below:

(a) Petition.

A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers, except a memorandum of law (unless the appeal is a charter school location/co-location appeal pursuant to section 276.11 of this Title, in which case the memorandum of law shall be served with the petition) or an affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent's residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner.

If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

If a board of cooperative educational services is named as a party respondent, service upon such board shall be made personally by delivering a copy of the petition to the district superintendent, to a person in the office of the district superintendent who has been designated by the board to accept service, or to any member of the board of cooperative educational services.

Pleadings may be served by any person not a party to the appeal over the age of 18 years.

If the last day for service of the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.

10. Also it should be noted that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.

Below is a listing of the several Parts of 8 NYCRR addressing "Appeals and Other Proceedings Before the Commissioner." Below are links to these several Parts.


* Although all school officers are employees of the school district, not all school district employees are school officers.

The Trojahn decision is posted on the Internet at:

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