November 11, 2021

In an appeal to the Commissioner of Education the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief

In this appeal to the Commissioner of Education the Petitioner [Doe]* sought the removal of a member of the Board of Education of School District [Respondent], alleging that the Respondent violated Doe's right to gainful employment and his right as a public employee to “engage in political discourse” on several occasions, including during [a] board meeting.  Doe "generally claims that Respondent "has harassed him since he was elected president of a local branch of the National Association for the Advancement of Colored People in 2015 and referenced several incidents between July 2018 and the spring of 2019 which allegedly demonstrate [Respondent's] disparate treatment of African American employees.:

In addition, Doe argued that Respondent “intentionally and wrongfully” divulged confidential information learned in an executive session [of the Board] while the executive session was ongoing."  

For relief, petitioner requests that respondent be removed as a trustee.  Petitioner also requests that respondent be ordered to comply with board policies, the New York State Constitution, and her oath of office. 

Addressing a number of procedural issues, the Commissioner opined:

1. Most of Doe's claims "must be dismissed as untimely", explaining 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, citing 8 NYCRR §275.16.

2. An appeal to the Commissioner pursuant to Education Law §310—or, in this instance, Education Law §306—is not an appropriate forum to adjudicate claims of unlawful employment discrimination and retaliation and such claims “are more appropriately resolved by a fair employment practice agency or a court of competent jurisdiction,” citing Appeal of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001.

Turning to the merits of Doe's appeal, the Commissioner said a member of a board of education, as a public officer, takes an oath of office to uphold the law and faithfully discharge his or her duties and a board member must not “disclose confidential information acquired by him [or her] in the course of his [or her] official duties or use such information to further his [or her] personal interests." Further, noted the Commissioner, "It is well settled that a board member's disclosure of confidential information in violation of General Municipal Law §805-a (1) (b) may constitute grounds for such board member's removal from office pursuant to Education Law §306, citing Application of Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147 and other Decisions of the Commissioner of Education.

That said, the Commissioner noted that in a removal application or an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. Doe, said the Commissioner, did not meet his burden of proving that Respondent disclosed confidential information learned in the course of her duties as a board member.

* Given the confidential nature of the Part 83 referral [Moral Character Actions] described herein, Petitioner has been assigned a pseudonym, Doe.  [See Appeal of Doe, 56 Ed Dept Rep, Decision No. 17,109.]

Click HERE to access the opinion of the Commissioner.