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May 11, 2018

Applying of the "Continuing Wrong Doctrine"


Applying of the "Continuing Wrong Doctrine"
Decisions of the Commissioner of Education, Decision No. 17,380

The Commissioner denied a petition seeking the removal of a member of the Board of Education of the Brentwood Union Free School District, citing a number of procedural defects with respect to the Petitioner's submitting the appeal.

Among the issues addressed by the Commissioner was Petitioner's argument that the petition was timely under the "continuing wrong doctrine."

The Commissioner disagreed, explaining that the continuing wrong doctrine applies when the ongoing action is itself an unlawful action that results in a continuous violation of the law, such as:

a. The unlawful employment of an unqualified individual, [Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919];

b. The unlawful appointments to a district’s shared decision-making team, [Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155];

c. An improperly constituted professional development team, [Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381]; and

d. Ongoing expenditures under an austerity budget that did not comply with the law, [Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901]. 

In contrast, the Commissioner observed that the doctrine "does not apply where the specific action being challenged is a single discrete action, inaction or decision and the resulting effects are continuing but are not intrinsically unlawful."

Addressing an administrative matter, the Commissioner granted the school board member's request for "a certificate of good faith pursuant to Education Law §3811(1) "solely for the purpose of authorizing the board to indemnify her for legal fees and expenses incurred in defending a proceeding arising out of the exercise of her powers or performance of duties as a board member."

The Commissioner explained that it is appropriate to issue such certification unless it is established on the record that the requesting board member or trustee acted in bad faith. In this instance, said the Commissioner, "because the application has been denied on procedural grounds, I hereby certify for the purpose of Education Law §3811(1) that respondent is entitled to receive the requested certificate."

The decision is posted on the Internet at:


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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.