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May 13, 2020

Commissioner of Education will not consider aspects of an appeal concerning the Family Educational Rights and Privacy Act or the New York State's Public Meetings Law

Petitioners in this appeal to the Commissioner of Education included allegations the school board's policy violated the privacy protections provisions of the Family Educational Rights and Privacy Act [FERPA] and Education Law §2-d.  Petitioners also argue that the board of education violated New York State's Public Meetings Law by having certain discussions in executive session.

The school board contended that the petition must be dismissed because the Commissioner lacks jurisdiction over FERPA claims and Open Meetings Law claims.  The school board also asked the Commissioner to issue Certificates of Good Faith in accordance with Education Law §3811.

Citing 20 USC §1232g, the Commissioner agreed that to the extent Petitioners allege that the school board's  violated FERPA, "the Commissioner [of Education] lacks jurisdiction to consider FERPA claims," explaining that the United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations.

As to Petitioners complaint with respect to allege violations of the Open Meetings Law, the Commissioner observed that Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.

Turning to the request that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1), the Commissioner noted that such certification "is solely for the purpose of authorizing the board to indemnify respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board trustee."

As it is appropriate to issue such certification unless it is established on the record that the requesting board trustee member acted in bad faith, the Commissioner opined that in view of this decision, and the fact that there has been no finding that the board members involved acted in bad faith, the board members involved are entitled to a certificate of good faith.

The decision is posted on the Internet at:

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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