Decision No. 13,696

(October 25, 1996)

Plunkett & Jaffe, P.C., attorneys for respondent, Howard M. Miller,

Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Sarah Tate ("respondent") from her position as assistant superintendent of schools in the Mamaroneck Union Free School District. The application must be denied.

Petitioner claims that respondent has engaged in various improper fiscal and accounting practices; that she failed to comply with Real Property Tax Law '1318, the Freedom of Information Law, and the bidding requirements of General Municipal Law '103; failed to retain records for the time periods required under the Records Retention Schedule for School Districts; failed to complete a telephone use audit; failed to maintain a telephone call log; and misrepresented to district voters the tax impact of a proposed bond issue.

Respondent asserts that the appeal is untimely and must be dismissed. Respondent further argues that petitioner has failed to establish grounds for her removal pursuant to Education Law '306 in that he failed to establish that she engaged in any wilful misconduct or violation of law.

After reviewing the record, I find the application is jurisdictionally defective. Education Law '306 provides, in pertinent part:

As assistant superintendent of schools, respondent is not an "officer" of the Mamaroneck Union Free School District as that term is used in '306. The Education Law specifically establishes certain individuals as officers in public school districts (Education Law, Article 43 [trustee, board member, clerk, treasurer and collector]; ''1711[5], 1804[1], 2508, 2566, 2590-f [superintendent of schools]; '2206 [district superintendent]). Assistant and associate superintendents are not officers, but are instead employees of a public school district (Education Law '2509; Application of Morris, 35 Ed Dept Rep 193). Consequently, the provisions of Education Law '306 do not apply to assistant superintendents, and respondent is not subject to removal pursuant to that statute.

In addition to the jurisdictional defect, respondent raises a procedural objection, contending that the appeal is untimely. Section 275.16 of the Commissioner's Regulations requires that an appeal to the Commissioner of Education be commenced within 30 days of the making of the decision or performance of the act complained of. That requirement applies to applications made pursuant to Education Law '306 (8 NYCRR '277.1, Application of Cotroneo, 29 Ed Dept Rep 421). Petitioner primarily complains of actions taken by respondent during the 1991-92, 1992-93 and 1993-94 school years. His allegations regarding violations of the Records Retention Schedule for School Districts are based on respondent's January 26 and February 16, 1995 responses to a Freedom of Information Law request submitted earlier by petitioner. Petitioner's final allegations regarding respondent's conduct are based on representations contained in a brochure published in April 1995 addressing the anticipated impact of the bond issue on taxes. This application was commenced September 7, 1995, more than thirty days after the close of the 1991-92, 1992-93, 1993-94 and 1994-95 school years. Consequently, even if the application was properly brought pursuant to Education Law '306, it must nevertheless be dismissed as untimely.

Finally, petitioner seeks censure of the Mamaroneck board of education and superintendent of schools. However, petitioner failed to join them as parties to the appeal and failed to personally serve them with a copy of the petition, as required by 8 NYCRR '275.8(a). Accordingly, petitioner's claims for relief as against the board of education and its superintendent must also be dismissed.

THE APPLICATION IS DENIED.

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