Decision No. 18,052
Application of JOHN DOE for the removal of Cynthia Ciferri as trustee of the Board of Education of the Brentwood Union Free School District.
Decision No. 18,052
(October 26, 2021)
Bond Schoeneck & King, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel
ROSA., Commissioner.--Petitioner seeks the removal of Cynthia Ciferri (“respondent”) as a member of the Board of Education of the Brentwood Union Free School District (“board” or “district,” as applicable). The application must be denied.
On February 27, 2020, respondent attended a regular meeting of the board. During the meeting, respondent made a comment implying that, years ago, petitioner served alcohol to underage students at a party in his home. This incident allegedly occurred in 2011 when respondent’s son was an underage student and petitioner was employed as a teacher.
On March 15, 2020, respondent attended a special meeting of the board. At some point during the meeting, the board entered executive session. The parties dispute the timing thereof; respondent maintains that the executive session lasted from 10:33 a.m. to 11:05 a.m., while petitioner argues that it lasted from 11:00 a.m. to 1:40 p.m.
On March 15, 2020, at 12:30 p.m., the William Floyd Union Free School District (“WFUFSD”) posted an announcement on its website that the Suffolk County Executive ordered all Suffolk County schools to close for two weeks beginning on Monday March 16, 2020 due to the COVID-19 pandemic. At 12:45 p.m., respondent posted a link to this post on a personal social media account. This application ensued.
Petitioner claims that respondent violated his right to gainful employment and his right as a public employee to “engage in political discourse” on several occasions, including during the February 27, 2020 board meeting. Petitioner generally claims that respondent has harassed him since he was elected president of a local branch of the National Association for the Advancement of Colored People in 2015 and references several incidents between July 2018 and the spring of 2019 which allegedly demonstrate respondent’s disparate treatment of African American employees. Petitioner also argues that respondent “intentionally and wrongfully” divulged confidential information learned in an executive session on March 15, 2020 while the executive session was ongoing. For relief, petitioner requests that respondent be removed as a trustee. Petitioner also requests that respondent be ordered to comply with board policies, the New York State Constitution, and her oath of office.
Respondent argues that the appeal must be dismissed as untimely to the extent petitioner raises claims that allegedly occurred in 2018 and 2019. Respondent further argues that any claims predating July 1, 2018 should be dismissed as moot since respondent did not serve as an officer or employee of Brentwood Union Free School District until that date. On the merits, respondent admits that she made the comment and posting attributed to her during the February and March 2020 board meetings. She denies, however, that this information was confidential.
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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). Petitioner served this application for removal on respondent on April 14, 2020. Thus, claims regarding conduct that occurred more than 30 days prior to this date, including at the February 27, 2020 board meeting, are untimely.
Petitioner requests that I excuse such delay because the February 27, 2020 board meeting giving rise to this appeal occurred shortly before the onset of the COVID-19 pandemic. As a result of the COVID-19 pandemic, the Governor issued an Executive Order directing all schools within New York State to close as of March 18, 2020. Based on the proximity of the February 2020 board meeting to these mandatory school closures, I have, in the exercise of my discretion, accepted petitioner’s explanation as a valid excuse with respect to the February 27, 2020 board meeting (compare Appeal of G.K., 60 Ed Dept Rep, Decision No. 17,908 [seven day delay in spring 2020 excused] with Appeal of R.A. and D.A., 61 id., Decision No. 18,047 [60-day delay in spring 2020 not excused]). However, the COVID-19 pandemic does not justify petitioner’s delay in asserting claims concerning acts or omissions that occurred on various dates between 2015 and 2019. As a result, these claims are untimely and must be dismissed.
Moreover, an appeal to the Commissioner pursuant to Education Law § 310—or, in this instance, Education Law § 306—is not an appropriate forum to adjudicate claims of unlawful employment discrimination and retaliation (see Appeal of T.A., 58 Ed Dept Rep, Decision No. 17,443). As I have previously stated, such claims “are more appropriately resolved by a fair employment practice agency or a court of competent jurisdiction” (Appeal of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001).
Turning to the merits, a member of a board of education, as a public officer, takes an oath of office to uphold the law and faithfully discharge his or her duties (NY Const, art XIII, § 1; Public Officers Law § 10; Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315). Among other duties, a board member must not “disclose confidential information acquired by him [or her] in the course of his [or her] official duties or use such information to further his [or her] personal interests” (General Municipal Law § 805-a  [b]; see General Municipal Law § 800 , ). The Commissioner has held that, within the public school system, the term “confidential” applies to “[i]nformation that is meant to be kept secret” (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315). It is well settled that a board member's disclosure of confidential information in violation of General Municipal Law § 805-a (1) (b) may constitute grounds for such board member's removal from office pursuant to Education Law § 306 (see Application of Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147; Application of Nett and Raby, 45 id. 259, Decision No. 15,315; Applications of Balen, 40 id. 250, Decision No. 14,474).
In a removal application or an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Petitioner has not met his burden of proving that respondent disclosed confidential information learned in the course of her duties as a board member. The parties agree that the incident discussed during the February 27, 2020 board meeting was the subject of a referral under part 83 of the Commissioner’s regulations. However, petitioner has not proven that respondent learned of the incident from the part 83 referral itself, as opposed to directly from her son or some other source. Petitioner’s failure to establish this link defeats any claim of improper disclosure (Application of Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147; Appeal of Henning and Rohrer, 33 id. 232, Decision No. 13,035).
Additionally, respondent’s dissemination of information concerning mandatory school closures was not “confidential” as it was publicly available information prior to her social media posting. Respondent has submitted evidence proving that the WFUFSD publicly posted the school closure on its website 15 minutes before she reposted it. Thus, even if respondent had learned this information in executive session, which she denies, it was publicly available prior to her posting. Information known or available to the general public is not “confidential” under General Municipal Law § 805-a (1) (b) (see Application of Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147). Therefore, I find that petitioner has failed to meet his burden to establish that the information respondent disclosed concerning school closures was confidential.
I have considered petitioner’s remaining claims and find them to be without merit.
THE APPLICATION IS DENIED.
END OF FILE
 Given the confidential nature of the part 83 referral described herein, petitioner has been assigned a pseudonym (see, e.g., Appeal of Doe, 56 Ed Dept Rep, Decision No. 17,109).
 Additionally, no claim may be asserted against respondent prior to July 1, 2018 as she did not serve as a trustee until that date.
 In Application of Nett and Raby, the Commissioner reasoned that, “[a]bsent a clear statutory definition, and given the importance of ensuring a uniform application in the educational system, the interpretation of ‘confidential’ in the school context is a matter best left to the Commissioner” (see also Komyathy v Board of Educ. of Wappinger Cent. School Dist. No. 1, 75 Misc 2d 859, 869 [Sup Ct, Duchess County 1973]). In a memorandum dated December 9, 2005, the State Education Department’s Counsel and Deputy Commissioner for Legal Affairs advised board of education members, other school officials, and school attorneys across the State that the Commissioner’s definition of “confidential” in Application of Nett and Raby differs from the interpretation of the term offered by New York State's Committee on Open Government.