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Decision No. 12,725

Appeal of R. Timothy O’Neill, Superintendent of the Amherst Central School District, from an order of a hearing officer pursuant to Education Law " 3020-a concerning charges against Anonymous, a tenured teacher.

Decision No. 12,725

(June 26, 1992)

Mahoney, Berg & Sargent, Esqs., attorneys for petitioner, Nicholas J. Sargent, Esq., of counsel

Bernard F. Ashe, Esq., attorney for respondent, Gerard John DeWolf, Esq., of counsel

SOBOL, Commissioner.-—Petitioner, Timothy O’Neill, Superintendent of the Amherst Central School District ("the petitioner"), appeals from the determination of the chairperson of a " 3020-a panel to grant respondent’s motion to dismiss certain charges prior to the completion of a disciplinary hearing commenced against him by the district’s board of education. The appeal must be dismissed.

On September 6, 1991, the Amherst Central School District’s Board of Education preferred two charges against respondent, a tenured teacher, alleging incompetence to carry out assigned duties and responsibilities and insubordination. The charge of incompetence included twenty specifications, while the insubordination charge included sixteen specifications.

On November 1, 1991, respondent moved to dismiss thirty-three of the thirty-six specifications. On December 20, 1991, following oral argument, the panel’s chairperson dismissed without prejudice Charge I, Specifications 2-17 and 19-20, and Charge II, Specifications 1,3, 7-9, 11 and 15-16. On January 7, 1992, petitioner commenced this appeal.

Petitioner alleges that the panel’s chairperson applied the wrong standard when he dismissed certain specifications on the grounds that they lacked specificity. Petitioner seeks an order reinstating the charges.

Respondent contends that as an interlocutory ruling, the chairperson’s determination may not be appealed. Respondent also alleges that petitioner fails to state a claim upon which relief may be granted. In addition, respondent requests that his right to privacy be preserved during the pendency of this appeal. Although there is no legal requirement to maintain confidentiality in " 3020-a proceedings, because a final determination of the charges has not been rendered, I will grant respondent’s request (See Appeal of Anonymous, 30 Ed Dept Rep 321).

The Commissioner of Education will not entertain interlocutory appeals on rulings made prior to a hearing panel’s final determination on charges brought pursuant to Education Law " 3020-a (Appeal of Anonymous, supra). In this case, petitioner seeks review of the chairperson’s decision to dismiss, without prejudice, several specifications preferred against respondent. Since the chairperson’s interlocutory ruling affords the board of education the opportunity to simply restate the charges with greater specificity, I find this appeal premature. As such, petitioner’s appeal must be dismissed (Appeal of the Board of Education of the Arlington CSD, 31 Ed Dept Rep _____, No. 12703, dated May 26, 1992; Appeal of Anonymous, supra; Appeal of St. Cyr, 27 id.351).

I also note that petitioner, the superintendent of schools, is not authorized to bring this appeal on behalf of the board of education. The board of education, as the party commencing the " 3020-a hearing, had standing to challenge the chairperson’s interim order. The superintendent of schools, however, who was not a party to the " 3020-a proceeding, lacks standing to bring this appeal.