In this Education Law §310 appeal submitted to Interim Commissioner of Education Rosa the Petitioner challenged determinations of the New York State Department of Educations' Deputy Commissioner of Cultural Education [DCCE] and individual members of the Board of Regents of the University of the State of New York [BOR] concerning a proposed deaccession* of certain items by the Town of Salem [Town]. In brief, Petitioner alleged that the DCCE and the BOR improperly approved the proposed deaccession of “selected furniture pieces” by the Georgi Museum, which is owned and operated by the Town.
Petitioner contended that the DCCE's and the BOE's approval of the deaccession "violated 8 NYCRR §3.27, the public trust doctrine and the State Administrative Procedure Act” and asked that Commissioner to declare such actions “void” and provide other relief in addition.
Commissioner Rosa dismissed Petitioner's appeal "for lack of jurisdiction." The Commissioner explained that court decisions indicated that Education Law §310 "deals throughout with the common schools and, inferentially ... does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law.”**
The Commissioner also noted that "[i]t is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by employees or officers*** of the State Education Department" and that such actions "can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules."
Similarly, said the Commissioner, a petitioner may not challenge an action of the BOR or its members in an appeal pursuant to Education Law §310, pointing out that the relevant portion of Education Law §310 provides that any party conceiving himself aggrieved "[b]y any ... official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same."
The Commissioner opined that although the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, the words ... do not stand alone, and ... are circumscribed and modified by the contextual words which precede and follow them”, citing Matterof Bowen v. Allen, 17 AD2d 12.
The bottom line: The Commissioner held that Education Law §310 provides no basis to review an alleged act or omission by the DCCE or by the BOR or its members.
* Deaccession is the official removing of an item from a public library, museum, or art gallery in order to sell it or otherwise dispose of it.
** See Matter of Board of Educ. of City School Dist. of City of Rome v. Ambach, 118 AD2d 932.
*** Although all public officers of the State are public employees, not all public employees of the State are public officers.
The decision is posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume60/d17935