August 11, 2021

Concerning proper service, timeliness, standing and employment discrimination with respect to appeals to the Commissioner of Education

In this appeal to the Commissioner of Education from action of the Board of Education, the Commissioner first addressed a number of procedural issues.

1. Proper service:  §275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

Effective April 7, 2020, during the time period of any movement restrictions or school closures directed by the Governor pursuant to an Executive Order during the COVID-19 crisis, the Commissioner noted that a petitioner may effectuate alternative service on a school district in the following manner:  

(1) by mailing the petition, notice of petition and all supporting papers by first class mail in an envelope bearing the legend “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to the attention of the district clerk and superintendent of schools ...; and (2) on the same date as the mailing, emailing the petition, notice of petition and all supporting papers under the subject heading “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to both the district clerk and superintendent of schools ....  Service shall be deemed complete upon completion of both steps identified above (8 NYCRR 275.8 [f]).

The Commissioner rejected the Board of Education's argument that this provision "does not apply because, at the time the appeal was commenced, the district was “open” and there were no movement restrictions or school closures that would have impacted petitioners’ ability to effectuate personal service."  

The Commissioner declined to dismiss the appeal for lack of personal services "Under the circumstances of this appeal," noting that the Board of Regents adopted the version of 8 NYCRR 275.8 (f) applicable here in April 2020, shortly after the Governor declared a State disaster emergency for the entire State of New York on March 7, 2020, finding that "it is in the spirit of the amendment to permit alternative service under the circumstances of this appeal, and I decline to dismiss the appeal on that basis."

2. Timeliness: 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 (8 NYCRR § 275.16. Noting that the record indicates that "the acts of which petitioners complain occurred at a public meeting of the board held on October 8, 2020", the Commissioner held that although petitioners would ordinarily be required to commence the appeal by November 7, 2020, "that day was a Saturday.  Where, as here, the 30-day time period in which to commence an appeal ends on a Saturday, the petition may be served on the following business day," citing 8 NYCRR 275.8 [a].  Thus, said the Commissioner, petitioners’ service of the petition on November 8, 2020 was within the 30-day time limitation.*

3. Standing: An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights and only an individual who is directly affected by an action has standing to commence an appeal therefrom. The Commissioner explained that a petitioner lacks standing to assert the rights of others who applied for the special education teaching positions.

4. Employment discrimination: The Commissioner ruled that a petitioners’ claims of employment discrimination is beyond the scope of an appeal to the Commissioner pursuant to Education Law §310, noting that the State's Human Rights Law contains a comprehensive scheme for the investigation and enforcement of human rights violations through the Division of Human Rights, citing Executive Law § 295).  Accordingly, it would be contrary to this structure for the Commissioner to assume jurisdiction over such claims.

The Commissioner noted that "Petitioners are correct that the Commissioner has opined upon claims of discrimination in prior appeals (e.g., Appeal of D.B., 49 Ed Dept Rep 319, Decision No. 16,041)." However, said the Commissioner, the "does not affect my conclusion that petitioners’ claims here — such as the disparate impact of hiring practices like “word of mouth” referrals – are more appropriately resolved by a fair employment practice agency or a court of competent jurisdiction," citing Grant v Bethlehem Steel Corp., 635 F2d 1007.

The Commissioner then addressed the merits of the appeal.

Click Here to access the full text of her decision.

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