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September 05, 2023

Neutrality and impartiality is required of school district officers in actions involving the adoption of a proposed school district budget

Petitioner in this Education Law §306 appeal to the Commissioner of Education became concerned over the school district’s proposed 2022-23 school year budget, which included a projected 4.5% increase in the property tax levy.

Petitioner met with the Superintendent of Schools [Superintendent] to discuss the proposed tax increase. The Superintendent told Petitioner that the increase was needed "to provide the district with sufficient savings in the event of a reduction in state aid funding."  Petitioner disagreed and indicated that he planned to share his findings with the local newspaper. 

Ultimately Petitioner, contending that the Superintendent attempted to suppress his letter to the editor and "engaged in impermissible partisan activity", sought to have the Commissioner remove the Superintendent "from office pursuant to Education Law §306."

The Commissioner ruled that Petitioner's application to remove the Superintendent from office "must be denied for lack of the required notice." Pointing out the §277.1 (b) of the Commissioner’s regulations "dictates the specific notice required for removal applications pursuant to Education Law §306", the Commissioner noted that such notice is distinct from the notice required under §275.11(a) for appeals pursuant to Education Law §310. 

Such notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application [See Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055, and other relevant decisions of the Commissioner of Education].

The Commissioner indicated that "a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective."  As the Petitioner's application lacks the required notice to the Petitioner, the Commissioner ruled it must be denied "lack of jurisdiction".

The Commissioner then observed that the Superintendent requested "a certificate of good faith pursuant to Education Law §3811(1), which certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811(1)."  Typically the Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith.

As Petitioner's appeal was dismissed "on procedural grounds without any findings on the merits," the Commissioner certified, solely for the purpose of Education Law §3811(1), that the Superintendent " is entitled to the requested certification", citing Appeal and Application of Petrocelli, 62 Ed Dept Rep, Decision No. 18,223.

However, advised the Commissioner, "Nothing in this decision should be interpreted as condoning [the Superintendent's] actions, which, even if motivated by an earnest desire to achieve passage of the budget, did not reflect the 'neutrality and impartiality' required of school officers in connection with school budgets."

Click HERE to access the Commissioner's decision posted on the Internet.

 

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