Decision No. 13,758

(April 16, 1997)

Arthur F. Grisham, Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioner appeals the payment of a claim by the Board of Education of the Madrid-Waddington Central School District ("respondent"), and seeks related relief. The appeal must be dismissed.

Although not entirely clear from the pleadings, it appears that an employee of the district, Sandra Steinberg, performed some services as "co-curricular AV director" for the 1993-1994 school year, but was not paid for those services. At some time prior to September 23, 1994, Ms. Steinberg filed one or more grievances against the district pursuant to the applicable collective bargaining agreement. On September 23, 1994, respondent's president wrote to the chairman of the grievance committee, stating respondent's decision not to schedule a further hearing on the 1993-1994 grievance, and to make it clear that the respondent believed the claim was not justified. At a board meeting held October 18, 1994, a motion was made to pay Ms. Steinberg $500 for her services during the 1993-1994 school year, conditioned on her withdrawal of a similar claim for the 1994-1995 school year. Because of the lack of information from the administration, the motion was tabled.

Thereafter, respondent conducted a special meeting on November 2, 1994, with all but one board member present. The superintendent was not present, but the school attorney was. (The superintendent's absence is not explained in the record.) After an executive session of more than two hours, respondent voted to sign a memorandum of understanding with the Madrid-Waddington Teachers' Association, resolving three grievances and two other potential matters of dispute. Among other things, the memorandum provided that Ms. Steinberg would be compensated for her work during the 1993-1994 school year. Although not stated in the memorandum, the amount of that compensation was $500.

Petitioner alleges that at the April 24, 1995, board meeting he asked respondent why they had paid Ms. Steinberg $500 "when it was not recommended or authorized as a legitimate Board expenditure in the minutes of a legal meeting." At the May 23, 1995, board meeting, petitioner again "asked for an explanation of this expenditure of funds which was tabled and never brought back up at a public meeting." It appears that on September 3, 1996, petitioner received certain materials from the district pursuant to a previous Freedom of Information Law request. Petitioner claims to have discovered at that time that respondent had held what he characterizes as a "secret meeting" on November 2, 1994, "to give an illegal gift of public funds." This appeal was commenced on September 23, 1996.

Petitioner claims that the November 2, 1994, board meeting was held in violation of the Open Meetings Law, and that the decision to make a payment to Ms. Steinberg was unlawful. Petitioner asks that I require respondent to explain its conduct and to explain why the expenditure was not made public. He further asks me to conduct an investigation and to remove any board members who participated in unlawful acts.

Respondent generally denies any wrongdoing, and states that it had full authority to compromise a disputed claim. Respondent further objects to any effort to remove board members because of petitioner's failure to comply with 8 NYCRR Part 277, and his failure to serve the petition upon individual board members. Respondent further claims that the appeal is untimely, that I lack jurisdiction to entertain complaints concerning violations of the Open Meetings Law (Public Officers Law ''100-111), and that the petition fails to state a cause of action. Respondent requests a certification of its apparent good faith pursuant to Education Law '3811.

The appeal must be dismissed as untimely. Generally, an appeal "must be instituted within 30 days from the making of the decision or the performance of the act complained of" (8 NYCRR '275.16). The Commissioner, however, may excuse the failure to commence an appeal within the time specified for good cause shown. In this appeal, the decision complained of was made November 2, 1994, but the appeal was not commenced until September 20, 1996, nearly two years later.

The Commissioner has on occasion exercised his discretion to allow late appeals where petitioner was not in possession of sufficient facts to bring the appeal until well after the expiration of the 30-day period. For example, in Appeal of Krauciunas (35 Ed Dept Rep 107) petitioner was allowed to appeal a board determination within 30 days after he learned of it, even though the determination had been made three months earlier. Similarly, in Appeal of Myers (34 id. 238) petitioner's appeal was held timely where the record did not indicate when petitioner received notice of respondent's action. In Appeal of Schofield (34 id. 143) the Commissioner allowed an appeal to proceed where petitioner did not have any evidence of alleged misconduct until almost a month after the determination, but commenced his appeal within 30 days of the discovery of the alleged misconduct (34 id. at 146). See also Application of Mody, 30 id. 402; Application of the Board of Education of the City School District of the City of New York, 28 id. 451.

The rationale of these decisions is that where an action or determination is unknown, the time within which to commence an appeal should be measured from the discovery of that action or determination. In this case, the petition makes it clear that petitioner knew of the $500 settlement on April 24, 1995, when he raised the issue at a school board meeting. Giving petitioner the benefit of the case law that sometimes allows the time to commence an appeal to begin upon discovery, this appeal should have been commenced no later than May 24, 1995. Although petitioner may not have had every detail of the board's November 2, 1994, action at that point, it appears that he had sufficient knowledge to commence an appeal at that time. Even if petitioner was under the impression that the settlement was not final, the record contains no clear picture of his efforts to obtain further information in 1995. Nor does it explain why it took more than a year to obtain copies of meeting notices sent by the district to local newspapers, and from which petitioner concluded on September 3, 1996, that a "secret meeting" had been held. Under these circumstances, I find the appeal untimely.

Even if the appeal were timely, it would be dismissed. Petitioner admits in his reply that respondent has the right to settle grievances, although he disputes whether the Steinberg claim was a "grievable matter." Petitioner's real objection is that, in his judgment, the board violated the Open Meetings Law by not properly publicizing the special meeting of November 2, 1994, and that as a result the determination to settle the grievance was unlawful. However, it has been repeatedly held that alleged violations of the Open Meetings Law may not be the basis for an appeal to the Commissioner of Education (Appeal of Douglas & Judy H., 36 Ed Dept Rep 224; Appeal of Chester, 35 id. 512; Appeal of Boyle, 35 id. 162; Appeal of Loriz, 33 id. 50). Petitioner's remedy, if he has one, must be pursued in the Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, or in a judicial action for declaratory judgment and injunctive relief (Public Officers Law '107).

Although I am constrained to dismiss this appeal, I remind respondent of its responsibilities under Public Officers Law '104 to provide proper notice of meetings. Respondent is also reminded that normally the superintendent should be present at board meetings pursuant to Education Law '1711(5).

I have reviewed petitioner's other claims and found them without merit. Pursuant to Education Law '3811(1), respondent's costs and reasonable expenses of defending this matter shall be a district charge.

THE APPEAL IS DISMISSED.

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