Application of GARY BERMAN, on behalf of his daughters Heather and Danielle, for removal of Dr. Frank Chiachiere as a member of the Boards of Education of the Valley Stream Central High School District and the Valley Stream Union Free District No. 13.

Decision No. 15,537

(February 27, 2007)

Guercio and Guercio, attorneys for Dr. Chiachiere and the Valley Stream Central High School District, John P. Sheahan, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to remove Dr. Frank Chiachiere from his positions as president and member of the Board of Education of the Valley Stream Central High School District and member of the Board of Education of the Valley Stream Union Free School District No. 13.  The application must be dismissed.

Petitioner asserts that Dr. Chiachiere has ignored, and has permitted district officers to ignore, the requirements of the State Freedom of Information Law (Public Officers Law §§84-90)(“FOIL”) and Title IX of the Education Amendments of 1972 (see 20 U.S.C. § 1681 et seq.).  To support this assertion, he presents voluminous documents and information regarding his complaints about district practices under Title IX and his requests for information under FOIL dating back to 2005.  He alleges that Dr. Chiachiere’s responses to these complaints and requests, and his oversight of district staff in connection with them, constitutes a willful violation of the law and asks that I remove him. 

Dr. Chiachiere and the Board of Education of the Valley Stream Central High School District assert that the application is untimely, that I lack subject matter jurisdiction over the claims, that petitioner has failed to join necessary parties, that the appeal is frivolous and that Dr. Chiachiere did not engage in willful misconduct.  They ask that I dismiss the appeal and issue a certificate of good faith to Dr. Chiachiere.

Most of petitioner’s claims must be dismissed as 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 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Bean, 42 id. 171, Decision No. 14,810). Petitioner bases his application on a collection of decisions and actions dating to 2005, but has not provided good cause for his delay in challenging them.  Accordingly, I dismiss those portions of the application regarding decisions made more than 30 days before the petition was filed. 

The remaining claims, which involve responses to petitioner’s FOIL requests in January 2006, must also be dismissed.  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations 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 Milazzo, 43 Ed Dept Rep 294, Decision No. 14,999; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660). Similarly, an application to the Commissioner pursuant to Education Law §306 is not an appropriate forum to adjudicate claims under Title IX (see 20 U.S.C. §1681 and 34 C.F.R. §106.71; Appeal of Berman, 46 Ed Dept Rep 64, Decision No. 15,442).  Accordingly, even if the Title IX claims had been timely, they would have been dismissed for lack of jurisdiction.

Education Law §306 authorizes the Commissioner to remove a member of the board of education for a willful violation or neglect of duty under the law (Education Law §306[1]; Application of Coleman, 45 Ed Dept Rep 282, Decision No. 15,324; Application of Gabryel, 44 id. 235, Decision No. 15,158).  To be considered willful, the board member’s actions must have been intentional and with a wrongful purpose.  I have no jurisdiction over the claims that petitioner alleges form the basis for removal of Dr. Chiachiere.  Therefore, petitioner has failed to establish facts sufficient to warrant removal (seeApplication of T.D., 41 Ed Dept Rep 157, Decision No. 14,646).

Although the application is denied for the foregoing reasons, one administrative matter remains.  Dr. Chiachiere has requested that I grant him a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify Dr. Chiachiere for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of his duties as a member and president of the board.  It is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith (Application of Mazile, 45 Ed Dept Rep 378, Decision No. 15,356; Application of Lilly, 43 id. 459, Decision No. 15,050).  On the evidence in the record before me, I find Dr. Chiachiere is entitled to receive a certificate of good faith. 

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPLICATION IS DISMISSED.

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