Challenging actions taken by members of the staff of the State Education Department

Petitioner in this appeal challenged a determination of the New York State Education Department’s Office of Special Education (“SED”) that she engaged in misconduct and acted incompetently during a special education due process hearing.  The Commissioner dismissed the appeal for "lack of jurisdiction."

The Commissioner explained that "It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department", noting 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."

Click HERE to access the decision of the Commissioner.

Extending a probationary period

A probationary teacher [Probationer] taught Social Studies. Subsequently Probationer agreed to serve an additional one-year probationary period, ending February 1, 2022.

By letter dated October 8, 2021, the assistant principal requested a meeting “regarding improper usage of an instructional period.”  The letter informed petitioner that she could bring a union representative because the meeting could lead to disciplinary action. Ultimately the superintendent informed Probationer that her probationary appointment, would end at the close of business on January 31, 2022.

Pursuant to its authority under Education Law §2573(1)(a), the New York City Department of Education [DOE] "may discontinue the services of a probationary teacher 'at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith.'”

In an appeal to the Commissioner, 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  and here the Commissioner determined that Probationer "has not proven that [DOE] discontinued her probation in bad faith."

Some technical issues to consider in filing an Education Law §310 appeal to the Commissioner of Education

1. Alleged violations of the Open Meetings Law may not be adjudicated in an appeal pursuant to Education Law §310 as the Commissioner of Education lacks jurisdiction to address the Open Meetings Law allegations raised in such an appeal.

2. Any deficiency in joining a necessary party may be cured during the pendency of the appeal by the joinder of the necessary party.

3. The services of a probationary teacher may be discontinued at any time during the probationary period unless the teacher shows that a board terminated service for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith, and the record of the instant appeal "supports a finding that petitioner’s probationary appointment was discontinued in bad faith."

Click HERE to access the Commissioner's decision.