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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

April 28, 2021

Seeking the removed of a member of a school board pursuant to the "continuing wrong doctrine"

In the course of a school board meeting a member of the school board held up a campaign postcard being distributed by the school district's teachers’ association which endorsed specific candidates running for seats on the board in the upcoming election and encouraged eligible residents of the school district to vote “Yes” for the budget. The member then stated "just an FYI ... the Teachers Association ... there’s their card ... they are pushing our budget so I’d like to thank them for that.” 

The Petitioner in this appeal to the Commissioner sought the removal of the board member for displaying the Association's postcard and his "FYI" statement, contending that the member had "violated board policy and the prohibition on electoral advocacy described in Matter of Phillips v. Maurer, 67 NY2d 672."

The Commissioner denied the Petitioner's application as untimely, noting that an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner "for good cause shown."* Here, said the Commissioner, Petitioner served the petition and notice of petition on the board member 120 days after the event giving rise to Petitioner's application. 

Turning to Petitioner's contention that the "continuing wrong doctrine" applied in this instance, the Commissioner explained that the doctrine applies when the ongoing action is itself an unlawful action that results in a continuing violation of the law, such as the unlawful employment of an unqualified individual. Citing a number of earlier decisions of the Commissioner of Education, the Commissioner opined that 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.

The Commissioner then reminded the "respondents that, although a board of education may disseminate information 'reasonably necessary' to educate and inform voters, it may not use district resources to distribute materials designed to 'exhort the electorate to cast their ballots in support of a particular position advocated by the board,'" citing Matter of Phillips [supra].

Click HERE to access the full text of the Commissioner's decision. 

N.B. The New York State Register dated April 28, 2021, reports the Education Department has filed proposed amendments of Parts 275, 276 and §277.1 of Title 8 NYCRR making certain technical changes and other clarifying amendments to Education Law §310 appeal procedures and requirements.

The text of proposed rule amendment and any required statements and analyses may be obtained from: Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112 EB, Albany, NY, 12234, (518) 474-6400.

Data, views or arguments may be submitted to Julia Patane, Esq., NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112 EB, Albany, NY, 12234,  (518) 474- 6400.

Public comment will be received until  60 days after publication of this notice.



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