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Decision No. 12,653

Appeal of JOHN W. KANE from action of the Gloversville Teachers' Association relating to an annual district meeting.

Decision No. 12,653

(February 25, 1992)

Pozefsky, Bramley & Murphy, Esqs., attorneys for respondent, William Pozefsky, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks a determination declaring certain actions taken by respondent Gloversville Teachers' Association in connection with the Gloversville City School District's 1991 annual election improper and directing respondent to cease and desist from similar actions in the future. The appeal must be dismissed.

Petitioner is a resident of the City School District of the City of Gloversville who ran unsuccessfully for a seat on the board of education in the May 7, 1991 annual election. Petitioner alleges that on April 11, 1991, prior to the election, respondent appointed a committee to endorse candidates for election to the board of education. Petitioner further alleges that the committee requested that members of the teachers' association provide the names, addresses and telephone numbers of parents who the teachers believed would support its endorsed candidates. Petitioner alleges that respondent's request violates the Family Educational Rights and Privacy Act (FERPA) (20 USC 1232g). Petitioner requests that, if the committee's actions are found to be improper, respondent be directed to cease appointing such committees in the future. Petitioner also appeals from the April 30, 1991 determination of the superintendent of schools of the Gloversville City School District denying his request for information made pursuant to the Freedom of Information Law (FOIL) (Public Officers Law '84, etseq.).

Respondent raises several procedural arguments that are dispositive of the appeal. First, respondent alleges that the appeal must be dismissed because it is untimely. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be initiated within 30 days of the decision or action complained of. Petitioner challenges actions which took place prior to Gloversville's annual school board election on May 7, 1991. Petitioner served respondent with a verified petition on July 15, 1991. Even if petitioner's time to appeal were calculated from the May 7, 1991 election, the appeal is more than two months late and, consequently, must be dismissed.

In addition, Education Law '310 provides that any person considering himself aggrieved by an action taken at a school district meeting, by the trustees of a school district or library, or by any other official act or decision of a school officer or authority may seek review of such action or decision in an appeal to the Commissioner of Education. Education Law '310, by its terms, does not authorize the Commissioner of Education to review actions taken by an organization such as the Gloversville Teachers' Association. Thus, the appeal must also be dismissed for lack of jurisdiction.

Thirdly, petitioner's complaint alleges violations of the Family Educational Rights and Privacy Act (FERPA) (20 USC 1232g). An appeal to the Commissioner is not the proper vehicle for enforcement of the provisions of FERPA (Appeal of Richardson, 29 Ed Dept Rep 70; Application of a Child with a Handicapping Condition, 28 id. 19; Matter of Reninger, 23 id. 27). Rather, enforcement of FERPA is vested with the Secretary of Education (20 USC 1232g[f]).

Finally, petitioner challenges the denial on April 30, 1991, of his Freedom of Information (FOIL) request by the superintendent of schools of the Gloversville City School District. I note that petitioner failed to join either the superintendent of schools or the Gloversville Board of Education as respondents in this appeal. In any event, the appropriate forum for addressing alleged violations of FOIL is the Supreme Court of the State of New York (Appeal of Krasinski, et al., 29 Ed Dept Rep 375; Application of Cobb, 29 id. 179; Matter of Zook, 28 id. 77; Matter of Keiling, 25 id. 122).