Amendments to Education Law §310 procedures for submitting appeals to the Commissioner seeking for the removal of school officers proposed

The proposed action would amend Part 276 and §277.1 of Title 8 NYCRR pursuant to Education Law, §§101, 207, 305, 310 and 311 with respect to Education Law §310 regarding appeals to the Commissioner and the initiation of proceedings seeking the removal of school officers.

NO HEARING(S) SCHEDULED

The text of the proposed rule amendments and any required statements and analyses may be obtained from Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov.

Data, views or arguments may be submitted to: Julia Patane, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: REGCOMMENTS@nysed.gov.

Public comment will be received until 45 days after publication of this notice. [Published in the NYS Register on September 29, 2021].

Rory M. Christian designated to serve as Chair of the New York State Public Service Commission and CEO of the State's Department Of Public Service

On September 30, 2021, New York State Governor Kathy Hochul announced the designation of Rory M. Christian as Chair of the Public Service Commission and chief executive officer of the Department of Public Service, the staff arm of the Commission.* 

Mr. Christian began his career in the energy industry with KeySpanEnergy where he first served as a civil engineer before transitioning to a role engaging government agencies operating in Long Island and New York City. In that role, he was responsible for coordinating activities between KeySpanand government organizations, negotiating contracts, developing contingency plans and streamlining operations to satisfy both organizations' operational needs.

While serving at Exelon Energy, Mr. Christian developed new products targeting public sector clientele and helped facilitate the creation of multiple partnerships and alliances. Mr. Christian also previously served as the Director of Energy Finance and Sustainability for the New York City Housing Authority. More recently, he was the Director of New York Clean Energy at Environmental Defense Fund where he provided strategy management, programming, business development and stakeholder collaboration for the Clean Energy program in NY.

Mr. Christian graduated from the City College of New York's, Grove School of Engineering with a bachelor's degree in Civil Engineering and an MBA from the Baruch College, Zicklin School of Business. 

* Nonpartisan by law since 1970, the six member Public Service Commission regulates New York State's electric, gas, steam, telecommunications, and water utilities and oversees the cable TV industry. The Commission also exercises jurisdiction over the siting of major gas and electric transmission facilities and has responsibility for ensuring the safety of natural gas and liquid petroleum pipelines. Members of the Commission are appointed by the Governor and confirmed by the State Senate for a term of six years or to complete an unexpired term of a former Commissioner.

Procedural errors or omissions preclude consideration of an Education Law §310 appeal to the Commissioner of Education on its merits

Petitioners in the appeal to the Commissioner of Education alleged that the school district [District] “systematically interfered with” the election to the school board by “providing absentee voter poll data before the polls closed"; using District resources “to advocate a ‘yes’ vote on the [s]chool [b]udget”; an employee organization "obtained voter contact information and used it 'to send an advocacy postcard to arrive simultaneously with [e]lection [b]allots,'” and that the superintendent “targeted email communications about the [b]udget and [t]rustee [v]ote to parents of children in the school district and not to the whole electorate.”

Petitioners asked the Commissioner issue an order overturning the results of the election and vote. Citing 8 NYCRR 275.10, the Commissioner said that in an Education Law §310 appeal to the Commissioner:

a. 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

b. Mere speculation as to the existence of irregularities or the effect of irregularities is an insufficient basis on which to annul election results.

The Commissioner then addressed a number of procedural issues raised by respondents in this appeal: 

1. With respect to Petitioners' challenge to alleged actions the employee organization in the voting process, the Commissioner opined that it is well settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education in appeals submitted pursuant to §310 of the Education Law and thus she lack jurisdiction over Petitioners' claims with respect to the employee organization's alleged participation in the election.

2. With respect to Petitioners' claims involving the Freedom of Information Law [FOIL],  the Commissioner held that such claims must dismissed for lack of jurisdiction, explaining that §89 of the Public Officers Law "vests exclusive jurisdiction over alleged FOIL violations in the Supreme Court of the State of New York."

3. The Commissioner then ruled that Petitioners’ remaining claims must be dismissed for failure to join "a necessary party," indicating that an individual or an entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such. As an example, the Commissioner noted that in an appeal involving a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed.”

Accordingly, the Commissioner dismissed Petitioners' §310 appeal for lack of jurisdiction. 

The Commissioner then noted that "even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits," explaining that in order to invalidate the results of a school district election, the petitioner must either:

(1) Establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or

(2) Demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

On this record, said the Commissioner, Petitioners have failed to carry their burden of proving that any irregularities occurred and affected the outcome of the election.

In the words of the Commissioner: "Although Petitioners object to various alleged actions of the district respondents, [Petitioners] have not provided any evidence, such as an affidavit from a district voter, to establish that such actions impacted the results of the election in any way."

Thus, opined the Commissioner, even if the appeal were not dismissed on procedural grounds, it would have been dismissed on the merits. 

Click HERE to access the full text of the Commissioner's decision.

New York State Department of Health Commissioner appointed

On September 29, 2021, New York State Governor Kathy Hochul announced Mary T. Bassett, MD, MPH, has been appointed Commissioner, NYS Department of Health.

Governor Hochul said "With more than 30 years of experience devoted to promoting health equity and social justice, both in the United States and abroad, Dr. Bassett's career has spanned academia, government, and not-for-profit work."

Dr. Bassett's appointment is effective December 1, 2021.

Judicial immunity and other bars to federal courts exercising jurisdiction over lawsuits challenging actions by a state court

The Plaintiff [Petitioner] appealed the dismissal of his pro se lawsuit in which New York State Unified Court System, its Office of Court Administration [OCA], and certain OCA personnel [collectively "Respondents"] were alleged to have violated Title II of the Americans with Disabilities Act of 1990 [ADA], 42 U.S.C. §§12131–12165, and §504 of the Rehabilitation Act, 29 U.S.C. §794 et seq. in the course of Plaintiff's family court action.

Petitioner alleged that Respondents denied certain of his requests for ADA accommodations and that he had suffered other damages in the course of his participation in certain New York State judicial and related proceedings.

1. With respect to Petitioner's claim for damages targeting a law clerk to a judge, the Circuit Court of Appeals concluded that judicial immunity bars such claims for damages. The court explained that “[A]cts arising out of, or related to, individual cases before the judge are considered judicial in nature” and protected by judicial immunity and "for purposes of absolute judicial immunity, judges and their law clerks are as one”. Accordingly, said the court, a law clerk "is sheltered from a damages claim for the actions taken by her in the capacity of court attorney."

 2. Addressing Petitioner's claims for injunctive and declaratory relief with respect to act or omissions of certain named Respondents, the Circuit Court of Appeals concluded all such claims against the Respondents must be dismissed in consideration of [a] the Rooker-Feldman doctrine, which prohibits federal courts from exercising jurisdiction over suits challenging final state court orders, and [b] the rulings in Younger [401 U.S. 37]  and O’Shea [414 U.S. 488] with respect to "abstention," which rulings caution that federal courts generally should refrain from enjoining pending state court proceedings. The Circuit Court of Appeals then opined that the federal district court "correctly concluded that it was either unlawful or imprudent for it to enter any order directing the state family court to conduct its affairs differently than it did in dealing with [Petitioner]." 

 3. With respect to claims for damages against OCA respondents, the Circuit Court of Appeals noted that although the district court "relied on the Eleventh Amendment in entering its dismissal order", it could affirm on any ground fairly presented by the record on appeal. It then so acted, "on the ground that [Petitioner] has failed to state a claim on which relief may be granted. The court explained that to establish a prima facie claim under either Title II of the ADA or §504 of the Rehabilitation Act, "a plaintiff must satisfy three requirements: he must show that (a) he is a “qualified individual” with a disability; (b) he was excluded from participation in a public entity’s services or programs or was otherwise discriminated against by a public entity; and (c) such exclusion or discrimination was due to his disability." Regardless of the correct resolution of claims advanced by Petitioner with respect to his being a "qualified individual" with a disability, the court concluded that Petitioner "has not plausibly alleged facts to satisfy the second and third requirements of the prima facie case."

4. As to Petitioner's assertion that OCA violated the ADA by failing to provide an ADA-compliant grievance procedure, the court noted that this assertion "is flatly contradicted" by both general information in the public record and specific records in Petitioner's case and the fact that "[t]he state court judicial record shows that [Petitioner] availed himself of these appeals processes." 

Accordingly, the court affirmed the district court’s dismissal of the damages claims against the Respondents as Petitioner "has not stated a claim on which relief may be granted."

Click HERE to access the Circuit Court of Appeals' decision.