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Decision No. 14,435

Application to reopen the Appeal of THE BOARD OF EDUCATION OF THE GREENBURGH ELEVEN UNION FREE SCHOOL DISTRICT from the determination of a hearing panel convened pursuant to Education Law "3020-a concerning charges against Stephen Boyer, a tenured physical education teacher.

Decision No. 14,435

(August 14, 2000)

Ehrlich, Frazer & Feldman, Esqs., attorneys for petitioner, Laura A. Ferrugiari, Esq., of counsel

Michael H. Sussman, Esq., attorney for respondent

CATE, Acting Commissioner.--Petitioner seeks to reopen Appeal of The Board of Education of the Greenburgh Eleven Union Free School District (39 Ed Dept Rep ____, Decision No. 14,325), which dismissed petitioner’s appeal of the determination of a hearing panel convened pursuant to Education Law "3020-a, which found Stephen Boyer ("respondent") guilty of certain misconduct and imposed a fine in the amount of $10,000. The application must be denied.

Petitioner claims that Commissioner Mills improperly decided the prior appeal, and that he failed to understand its argument that petitioner's actions of December 9, 1996, and March 22, 1999, were intended to ratify and cure actions taken on September 12, 1995. Petitioner relies primarily on Appeal of the Board of Education of the City School District of the City of Rochester (19 Ed Dept Rep 262, Decision No. 10,123, affirmed sub nom. Kloepfer v. Commissioner of Education, 82 AD2d 974). However, I find that case clearly distinguishable from the case before me now.

In the Rochester appeal, the board of education received a disciplinary panel decision on March 14, 1979, and purported to authorize an appeal of that decision in an executive session held on March 26, 1979, in possible violation of the Open Meetings Law, although the Commissioner made no determination on that point. The notice of petition and petition were served on respondent on April 12, 1979, but the board did not correctly authorize the commencement of the appeal until it voted to do so in a public session held May 31, 1979. In the appeal sought to be reopened, petitioner received the panel decision on September 5, 1995, and purported to authorize the appeal in public session on September 12, 1995. The appeal was purportedly commenced on October 3, 1995.

However, unlike Rochester, the original attempt to authorize an appeal in this matter was not a mere error. Rather, the board’s actions of September 12, 1995, were judicially nullified by the Supreme Court, Westchester County, in Matter of John Goetschius, et al. v. Board of Education of the Greenburgh Eleven UFSD, Index No. 2861-95, July 31, 1996. The Court nullified all of the board’s actions taken on September 12, 1995, "in light of respondents’ pattern of numerous violations of the Open Meetings Law and the irrefutably willful and flagrant manner in which they continue to do so . . ." This nullification was later upheld by the Appellate Division, Second Department, in Matter of Goetschius, et al. v. Board of Education of the Greenburgh Eleven UFSD, 244 AD2d 552.

I am not unmindful of petitioner’s argument that it "ratified" these annulled actions in its later meetings of December 9, 1996, and March 22, 1999. (Its actions of December 9, 1996, have also been judicially nullified: Matter of John Goetschius, et al. v. Board of Education of the Greenburgh Eleven UFSD, Supreme Court, Westchester County, Index No. 5378-97, March 4, 1999). Generally, a corporate board can ratify unauthorized acts. As stated in 14A New York Jur 2nd, Business Relationships "659: "The ratification of an act done or a contract entered into by a previously unauthorized officer or agent, unless rights of third persons have intervened, is equivalent to a prior authority and relates back to and supplies the authority to do such an act or to make such a contract" (emphasis added). Here, however, the rights of respondent, as protected by the limitation period set forth in 8 NYCRR "275.16, intervened. Once thirty days had passed after petitioner received the panel decision on September 5, 1995, without the commencement of a properly authorized appeal, respondent's rights were fixed. The fact that petitioner purported to ratify its previously nullified actions on December 9, 1996 (which "ratification" was also judicially nullified) and again on March 22, 1999, more than three and one-half years later, does not amount to "an appropriate instance in which my discretion pursuant to 8 NYCRR 275.16 should be exercised to find that this appeal is timely" (Appeal of the Board of Education of the City School District of the City of Rochester, supra, at p. 263), and I decline to do so (see, e.g, Appeal of Hessney, 37 Ed Dept Rep 366, Decision No. 13,881, at p. 370).

More importantly, perhaps, if I were to accept petitioner’s argument, I would be attempting to overrule the determinations of both the Supreme Court and the Appellate Division, Second Department, with respect to their nullifications of petitioner's actions for violating the Open Meetings Law. I have no authority to do so. It is well established that the courts have jurisdiction over controversies involving the Open Meetings Law, while the Commissioner of Education does not (see, e.g., Application of Goldin, 39 Ed Dept Ed 14, Decision No. 14,158; Appeal of Tsu, et al., 39 Ed Dept Rep 84, Decision No. 14,181; Appeal of Goldin, 38 id. 317, Decision No. 14,043).

In view of this disposition, I will not discuss the parties’ other contentions, which I find without merit.

THE APPLICATION IS DENIED.

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