Appeal of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District regarding board meeting minutes.


Decision No. 15,383


(March 21, 2006)


Harris Beach LLP, attorneys for respondent, James A. Spitz, Jr., Esq. and Laura M. Purcell, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the alleged failure of the Board of Education of the Greece Central School District (“respondent”) to include certain information in the minutes of a board meeting.  The appeal must be dismissed.

On November 30, 2004, respondent convened a special meeting at which, petitioner asserts, respondent established a Board Correspondence Review Committee (“BCRC”)[1].  At its December 14, 2004 meeting, respondent approved the minutes of the November 30, 2004 special meeting, which did not reflect any board vote establishing the BCRC. 

At its January 11, 2005 meeting, petitioner questioned the accuracy of the November 30, 2004 minutes with respect to the establishment of the BCRC, but respondent did not amend the minutes.  This appeal ensued.

Petitioner asserts that respondent failed to provide a written agenda at the November 30, 2004 special meeting, failed to record any vote establishing the BCRC at its November 30, 2004 meeting and, at subsequent board meetings held on December 14, 2004 and January 11, 2005, failed to correct the alleged omission in the November 30, 2004 minutes.  Petitioner claims these actions were intended to avoid public scrutiny of the business conducted at the November 30, 2004 meeting.  Petitioner seeks an order directing respondent to correct the board minutes described in this appeal and to maintain accurate minutes in the future.

Respondent asserts that its board president, not respondent, established the BCRC; that, consequently, no vote was taken at the November 30, 2004 meeting; and that the minutes of the November 30, 2004 meeting are accurate.  Respondent contends that the appeal is untimely.  Respondent also maintains that petitioner is alleging violations of the Open Meeting Law and that such claims are not properly before the Commissioner of Education.

As a procedural matter, petitioner requests permission to submit, as additional exhibits to the petition, excerpts from minutes of the December 14, 2004 and January 11, 2005 board meetings.  Petitioner submitted the exhibits in a timely fashion after receiving transcripts of the minutes from respondent.  Therefore, I have accepted the exhibits into the record.

Petitioner’s verified reply, however, cannot be considered.   Petitioner was granted an extension of time until March 18, 2005 in which to serve his reply, but he did not do so until March 24, 2005.  The reply, therefore, is untimely.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The reasons for failure to timely commence an appeal must be set forth in the petition (8 NYCRR §275.16).

With respect to petitioner’s challenge to actions taken at respondent’s November 30 and December 14, 2004 meetings, the time period in which to initiate an appeal expired on December 30, 2004 and January 13, 2005, respectively.  Petitioner did not serve his petition until January 14, 2005 and offers no explanation for the delay in his petition.  Therefore, to the extent that petitioner’s appeal relates to those meetings, it is untimely.  Petitioner’s challenge to action taken at respondent’s January 11, 2005 meeting, however, is timely.

Respondent’s jurisdictional challenge to the appeal is dispositive.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785).  Because the Open Meetings Law governs the requirement that boards of education maintain minutes of board meetings, allegations regarding compliance with that requirement, such as those raised by petitioner here, may not be the basis of an appeal to the Commissioner of Education (see Public Officers Law §106; Appeal of Kushner, 31 Ed Dept Rep 351, Decision No. 12,663).

In view of the above disposition, I need not address petitioner’s remaining claims.





[1] In a prior appeal, petitioner’s challenge to the BCRC was dismissed on procedural and substantive grounds (Appeal of Hubbard, 45 Ed Dept Rep ____, Decision No. 15,311).