Selected recent quasi-judicial decisions issued by the Commissioner of Education

Issuing a Certification of Good Faith pursuant to Education Law §3811[1]

An Education Law §3811[1] Certification of Good Faith requested by a Respondent in connection with an appeal to the Commissioner of Education is issued solely for the purpose of authorizing a board of education to indemnify such a Respondent for costs incurred in defending himself* in a proceeding arising out of the exercise of the Respondent’s powers or the performance of the Respondent’s duties as a board member, officer, employee or other actor described in §3811(1) unless the record establishes that the particular individual requesting such a certification acted in bad faith. Click on the URL below to access this decision posted on the Internet.

http://www.counsel.nysed.gov/Decisions/volume62/d18201 

* §22 of New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” Case summaries posted in NYPPL reflect this protocol.

School district officers and school district employees distinguished

The Petitioner in this Education Law §306 appeal sought the removal of the school district's records access officer [RAO]. Noting that the Commissioner of Education is authorized to remove “any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer,” i.e.  an “elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system”,  the Commissioner explained that the RAO is not a “school officer” listed in §306(1) but rather a school district employee. Accordingly, the Commissioner of Education has no authority to remove the RAO from the position under color of §306(1). Although all public officers are public employees, not all public employees are public officers.

Click HERE to access this Decision of the Commissioner of Education

Discontinuing the services of a probationary teacher

The New York City Department of Education may discontinue the employment of a probationary teacher pursuant to Education Law §2573(1)(a) at any time and for any reason absent the teacher's establishing that "the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith”* (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]; see Education Law §§ 3012-c [1], 3012-d [9]; 8 NYCRR § 30-2.1 [b]; Kahn v New York City Dept. of Educ., 18 NY3d 457 [2012]; Appeal of H.H., 56 Ed Dept Rep, Decision No. 17,033; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879).  The Commissioner has defined “bad faith” as “[d]ishonesty of belief, purpose, or motive” (Appeals of Prisinzano, 62 Ed Dept Rep, Decision No. 18,195, citing Black’s Law Dictionary [11th ed. 2019]). Click on the URL below to access this decision posted on the Internet:

http://www.counsel.nysed.gov/Decisions/volume62/d18212

* In contrast see http://www.counsel.nysed.gov/Decisions/volume62/d18211, reporting the decision of the Commissioner of Education in an appeal in which the Commissioner found that the record supported a finding that the educator's probationary appointment was discontinued in bad faith. 

Election of remedies

Petitioner’s originally commenced a proceeding pursuant to Article 78 of the Civil Practice Law and Rules in Supreme Court. Supreme Court dismissed the Article 78 proceeding based on the understanding that Petitioner would have an opportunity to pursue her claim via an Education Law §310 appeal to the Commissioner of Education. The court had deferred to the Commissioner of Education and denied the Article 78 petition "without prejudice to renew [the claim] before the Commissioner of Education.” The Commissioner ruled that "[given] this language, it would be inconsistent with the court’s decision to dismiss this Education Law §310 appeal based on an election of remedies [argument as the school district] successfully moved to dismiss the Article 78 petition on the ground of primary jurisdiction and filed its motion approximately four months after petitioner’s union declined to pursue a grievance." In the words of the Commissioner, the school district "... had the opportunity to move to dismiss the Article 78 petition based on election of remedies but chose not to do so" and declined to dismiss Petitioner's §310 appeal based on the school district's election of remedies argument at this stage of the dispute. Click on the URL below to access this decision posted on the Internet:

http://www.counsel.nysed.gov/Decisions/volume62/d18216