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Appeal to the Commissioner of Education pursuant to §306 of the Education Law dismissed as untimely, for lack of proper service and for lack of jurisdiction

The Petitioner in this action asked the Commissioner of Education to remove the President of the school district's Board of Education pursuant to §306 of the Education Law, alleging the President defamed him at a board meeting and that the President’s comments "have had a negative personal and professional impact on him."

In rebuttal, the school district contended that Petitioner's application was untimely, must be dismissed for improper service, and the Petitioner's allegations of defamation and slander are outside the jurisdiction of the Commissioner.*

The Commissioner held that the Petitioner's application must be denied as untimely, noting "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". The Commissioner rejected Petitioner's argument that such lateness should be excused "due to his lack of knowledge concerning the appeal process." In the words of the Commissioner this was "not a sufficient basis to excuse a delay in commencing an appeal or removal application", citing a number of Decisions of the Commissioner of Education including Application of S.D., 60 Ed Dept Rep, Decision No. 18,009.

The Commissioner also noted Petitioner's application must also be denied for lack of personal service as §275.8(a) of the Commissioner’s Regulations requires that a petition be personally served upon each named respondent. In this instance Petitioner's affidavit of service indicates that service was made upon the district clerk.  Petitioner, however, was required to serve the President, the individual whose removal he sought, personally.

Addressing the President's request for a certificate of good faith pursuant to Education Law §3811(1) the Commissioner explained that "[such] 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)". As Petitioner's appeal was dismissed on procedural grounds without any findings on the merits, the Commissioner certified that the President was entitled to the requested certification [see Appeal and Application of Petrocelli, 62 Ed Dept Rep, Decision No. 18,223].

* The Commissioner noted that she "lacked jurisdiction to adjudicate Petitioner’s claims of defamation or slander", citing Appeal of Zwanka, 56 Ed Dept Rep, Decision No. 17,051 and Appeal of Murray, 56 id., Decision No. 17,002.

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

 

Cyber attacks on State, local government and school district cyber security systems

In a report issued in October 2023, New York's State Comptroller Thomas P. DiNapoli indicated that:

"Cyberattacks are a serious threat to America’s critical infrastructure and have the potential to severely impact our day-to-day lives. These incidents often result in data breaches for companies and institutions that collect large amounts of personally identifiable data. Data breaches expose New Yorkers to invasions of privacy, the possibility of identity theft and other types of fraud. Even more troubling are incidents such as ransomware or distributed denial of service attacks that have the potential to shut down systems that we rely on for water, power, health care and other necessities."

The report highlights the recent proliferation of cyberattacks, details the most common types; discusses recent efforts to respond to and prevent such attacks; and recommends a policy framework intended to help New York stay ahead of the threat presented by cyberattacks. 

The Office of the State Comptroller [OSC] noted that it is working to help avoid cyber attacks by auditing and uncovering weaknesses in State, local government and school district cyber security systems. Audits by OSC's Divisions of State Government Accountability and Local Government and School Accountability revealed dozens of ransom ware attacks and other data breach incidents that compromised New York State agencies, counties, cities, towns and villages, hospitals and public-school systems, and have identified gaps in cyber security. OSC said "Understanding and addressing these weaknesses can help New York State remain vigilant."

OCS noted that it "will continue to dedicate attention and resources to protecting New York residents and institutions from these attacks."

Click HERE to access the State Comptroller's October 2023 report.

 

Substantial evidence

The determination of appointing authority [Employer] which terminated Petitioner's employment based on the report and recommendation of an Administrative Law Judge was unanimously confirmed by the Appellate Division. 

The court noted that "Substantial evidence supports [the Employer's] determination that Petitioner violated Department directives and procedures concerning the retrieval of inmate property, engaged in undue familiarity with an inmate, failed to submit a required unusual incident report, used excessive force against an inmate, and made false and misleading statements.] 

Under the circumstances the Appellate Division opined that "The penalty of termination of petitioner's employment does not shock one's sense of fairness", citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, among other decisions.

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

 

Employee's application seeking a religious exemption from the COVID-19 vaccination requirement for agency employees denied

The Appellate Division sustained Supreme Court's decision rejecting Plaintiff's petition seeking a court order annulling the determination of the City of New York Reasonable Accommodation Appeals Panel [Citywide Panel] denying Plaintiff's request for a religious exemption from the COVID-19 vaccination requirement for employees of the New York City Department of Education [DOE].

The Citywide Panel denied Plaintiff's administrative appeal challenging the denial of his application for a religious exemption from the vaccination requirement, finding that:

[1] "Plaintiff failed to establish that his objection to receiving any of the COVID-19 vaccines was based on a sincerely held religious belief; and 

[2] "granting the accommodation would impose an undue hardship on DOE."

Citing Matter of Marsteller v City of New York, 217 AD3d 543, the Appellate Division noted that Plaintiff:

[1] "had no demonstrated history of refusing medications or vaccines;

[2] "he admitted to receiving a certain vaccination required for him to attend college;  and 

[3] "he refused to answer a question about whether he had avoided any other vaccines or medications based on the same objection he raised to the COVID-19 vaccines."

The court also rejected Plaintiff's argument that DOE's "Position Statement" was unsigned and undated hearsay, noting "Generally, administrative proceedings need not conform to all of the ... evidentiary rules adhered to in judicial tribunals", citing Matter of Church of Scientology of N.Y. v Tax Commn. of City of N.Y., 120 AD2 376, nor need an agency "state with specificity its detailed analysis," or "point to any contemporaneously created record that demonstrates that it considered all relevant factors" or "or engage in a cooperative dialogue".

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