Application of WILLA POWELL for the removal of Beatriz LeBron as a member of the Board of Education of the City School District of the City of Rochester.

Decision No. 18,194

(August 31, 2022)

The Law Firm of Frank W. Miller, attorneys for respondent, Frank W. Miller, Esq., of counsel

ROSA., Commissioner.--Petitioner seeks the removal of Beatriz LeBron (“respondent”) as a member of the Board of Education of the City School District of the City of Rochester (“board”).  The application must be denied. 

Pursuant to Part C of chapter 56 of the Laws of 2020, I appointed a monitor to provide oversight, guidance, and technical assistance related to the educational and fiscal policies, practices, programs, and decisions of the Rochester City School District.  The monitor, board, and the superintendent developed an academic improvement plan (“plan”), which was implemented during the 2021-2022 school year.  The plan included a requirement that “[t]he Board … incorporate racial and linguistic bias training into … the professional development plan for all Board [members].”  The board organized such a training, which respondent did not attend.  This application ensued.

Petitioner contends that respondent’s refusal to attend the racial bias training constitutes willful disobedience of “a decision, order, rule or regulation” of the Commissioner.[1]  Petitioner seeks respondent’s removal from office.

Respondent contends that, while she did not attend the racial bias training, she attended and conducted other trainings that provide sufficient instruction in racial bias.  Respondent also argues that some of petitioner’s claims are time-barred.

First, I must address two procedural issues.  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 (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).  The 30-day timeframe also applies to a removal application pursuant to Education Law § 306 (8 NYCRR 277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  The Commissioner has held that a removal application is timely when commenced within 30 days of the petitioner’s good faith discovery of the challenged conduct, even if the actual conduct occurred more than 30 days prior (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  In her application, petitioner describes numerous actions by respondent that took place more than 30 days prior to the commencement of this appeal.  Petitioner has not offered good cause for her delay in raising such allegations.  Therefore, I have not considered petitioner’s untimely allegations.

Next, respondent requests permission to submit a late answer pursuant to section 275.13 of the Commissioner’s regulations.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR 276.3).  Similarly, a late answer may be considered in the discretion of the Commissioner if the respondent provides good reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed true (8 NYCRR 275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).  Respondent’s claim of inadvertent error is not good cause for the delay (Appeal of Democracy Prep Endurance Charter School, 59 Ed Dept Rep, Decision No. 17,735; Appeal of Murphy, 57 id., Decision No. 17,234).  Therefore, I decline to accept respondent’s answer and accompanying affidavits.  However, I have considered respondent’s memorandum of law, which was timely submitted.

To the extent it is premised upon a violation of the plan, petitioner’s application must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  The Commissioner’s jurisdiction pursuant to Education Law § 310 is appellate in nature, and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of M.P., 59 id., Decision No. 17,848; Appeal of Parris, 51 id., Decision No. 16,261; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]).

Respondent wrote to me on February 1, 2022, indicating that she would attend a different racial bias program in lieu of the training selected by the board.  In a response dated February 11, 2022, I advised respondent, among other things, that

[t]he Monitor must determine whether [respondent’s] proposal satisfies the board’s approved plan in the first instance. If the Monitor determines that a provision of the plan has been violated, she may submit a notice of violation to the Commissioner.  Thereafter, the District will be afforded an opportunity to respond before the Commissioner determines whether any remedial action is necessary.

I have not received a notice of violation from the Monitor concerning this issue.  Such notice is a necessary predicate to the issuance of a “decision” or “order,” the violation of which could give rise to removal under Education Law § 306.[2]  Thus, any claimed violation of the plan is premature.

Additionally, petitioner has not established that the February 11, 2022 response was a “decision” or “order” within the meaning of Education Law § 306.  In an appeal or removal application 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).  The February 11, 2022 response did not obligate respondent to take any specific action; it merely “encourage[d] [respondent] to consider attending the board-sponsored training.”  As such, it cannot form the basis for removal (see Appeal of Moss, 60 Ed Dept Rep, Decision No. 17,952 [admonishment to board members not an order of the Commissioner]).

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

THE APPLICATION IS DENIED.

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