New York State's Commissioner of Education does not issue advisory opinions

In Decisions of the Commissioner of Education, Decision No. 17,827, Interim Commissioner of Education Shannon Tahoe dismissed an appeal filed pursuant to Education Law §310 seeking the removal of a member of a school board [Board Member] on the grounds that the Petitioner sought an advisory opinion.

In the words of Commissioner Tahoe:

"The appeal must be dismissed as seeking an advisory opinion.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310.* While [Petitioner] complains of prior statements and affiliations of [Board Member], she does not seek any relief against [Board Member] – for example, [Board Member's] removal from office (see Education Law §306).

"Instead, [Petitioner] merely seeks an advisory opinion that school board members may not, consistent with their duties and responsibilities, directly or indirectly support abstention from [State Education Department] SED assessments.  There are no specific allegations that [Board Member] engaged in inappropriate conduct while serving as a board member.

"Thus, [Petitioner’s] query is advisory in nature and cannot be the subject of an appeal brought pursuant to Education Law §310."

Addressing a procedural defect in Petitioner's appeal, Commissioner Tahoe noted that:

"... to the extent [Petitioner] asserts claims against [Board Member] under Education Law §306 or §310, she has failed to join [Board Member] as a respondent in this proceeding.  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. 

"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.  [Petitioner] did not name [Board Member] in the caption of the appeal or serve [Board Member] with a copy of the petition."

* Below are selected New York departments and agencies and political subdivisions of the State posting advisory opinions or other personnel related information on the Internet:

Opinions of the Attorney General [Formal and Informal] are posted at https://ag.ny.gov/appeals-opinions/introduction-opinions

Opinions of the State Comptroller are posted at https://www.osc.state.ny.us/legal-opinions

Open Meetings Law [OML] - Opinions of the Committee on Open Government are posted at https://www.dos.ny.gov/coog/oml_listing/oa.html

Freedom of Information Law [FOIL] - Opinions of the Committee on Open Government are posted at https://www.dos.ny.gov/coog/foil_listing/findex.html

Advisory Opinions of the NYS Department of Taxation and Finance are posted at https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/ao_tax_types.htm

Counsel Opinion Letters, New York State Department of Labor are posted at   https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/ao_tax_types.htm

Information issued by the Office of Counsel and other arms of the Public Employment Relations Board [PERB] is posted at https://perb.ny.gov/office-of-counsel/

New York City Civil Service Commission -- a list of the types of appeals considered by the Commission is posted at https://www1.nyc.gov/site/csc/appeals/other-types-appeals/other-types.page

See, also, https://research.lib.buffalo.edu/ny-admin-law/opinions-by-subject for additional such resources.

Commissioner Tahoe's decision in Petitioner's appeal is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume59/d17827