Two members of a school board [Petitioners] filed separate applications seeking the removal of another member of the school board [Respondent] with the New York State Commissioner of Education. The Commissioner consolidated the Petitioners' applications for decision as they concern common questions of law and fact.
Petitioners contended that Respondent disclosed confidential information at a public board meeting and, as such, should be removed from the board. Respondent argued that the applications should be denied as untimely and, further, claimed that Petitioners have failed to meet their burden of proving that Respondent's removal is warranted.
Citing 8 NYCRR 275.16, the Commissioner denied both applications on the ground that both were untimely, explaining that an appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown and that this 30-day limitation "also applies to a removal application pursuant to Education Law §306. Observing that the Commissioner has held that a removal application is timely when commenced within 30 days of the petitioner’s good faith discovery of the challenged conduct, even if the actual conduct occurred more than 30 days prior, the Commissioner noted that Petitioners, as members of the board, executive sessions in which board members discussed the alleged confidential information.
The Commissioner pointed out that the 30-day “time
limitation is not tolled until petitioners obtain a satisfactory explanation
for the actions about which they complained". Noting that the Petitioner applications were
served on
Another issue noted by the Commissioner: Although the record in this matter is limited, [1] it was not apparent how the general issue presented by Petitioners "fits within any of the enumerated purposes for an executive session" as defined in Public Officers Law §105 and [2] the revelation cited by Petitioners as uttered during the public session would not likely support removal of the Respondent.
Lastly, the Commissioner granted Respondent's requests a Certificate of Good Faith pursuant to Education Law §3811(1). Such a 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 in good faith as a board member or other official listed in §3811(1). As Petitioners' applications were dismissed on procedural grounds without any findings on the merits, the Commissioner certified that Respondent was entitled to the requested certification.
Click HERE to access the Commissioner's decision posted on the Internet.