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Decision No. 13,935

Appeal of T. ALLEN LAMBERT and KAREN L. MACDONALD from action of the Board of Education of the City School District of the City of Ithaca regarding alleged violations of the Open Meetings Law.

Decision No. 13,935

(May 6, 1998)

Bond, Schoeneck & King, LLP, attorneys for respondent, Donald E. Budmen, Esq., of counsel

MILLS, Commissioner.--Petitioners, residents of the Ithaca City School District, appeal the actions of the board of education of that district ("respondent") alleging that, in selecting a candidate to fill a vacancy on the board, respondent conducted the entire selection process in executive session without any public input or scrutiny. The appeal must be dismissed.

After learning that one of its members intended to resign his position on the board, respondent, during its regular meeting on October 28, 1997, added an item to its agenda to discuss the anticipated vacancy, and passed a resolution inviting the public to submit applications of interest by 5:00 p.m. on November 12, 1997. This item was not listed on the public agenda, and the public was allegedly not given timely notice and a sufficient opportunity for input.

Respondent met in executive session at its November 12, 1997 board meeting and chose four of the nine applicants as finalists. These finalists were invited to make a public presentation and answer questions at respondent’s board meeting on November 18, 1997. Respondent announced it would make a final selection on November 25, 1997.

Petitioners commenced this appeal on November 17, 1997. They contend that respondent violated the Open Meetings Law when it (i) added, during the October 28, 1997 board meeting, a new item to the agenda of that meeting; (ii) discussed, in executive session, the criteria for selecting the new candidates; (iii) discussed the qualifications of the candidates in executive session and (iv) failed to vote publicly on a resolution regarding the selection of the candidates. Petitioners request that I issue an order finding that respondent violated the law and directing respondent to conduct open meetings during its scheduled November 18 and 25 sessions. I denied petitioners’ request for a stay of these proceedings on November 28, 1997.

Respondent admits many of petitioners’ allegations but maintains that its conduct was lawful. Respondent contends that the public was informed of the selection process, not only by the resolution that was passed during the October 28, 1997 meeting, but also by the press releases and media coverage of the matter. Also, at its November 25 meeting, respondent appointed its new member by formal resolution adopted in public session. Respondent argues that the petition should be dismissed because I lack jurisdiction to decide the issues raised, the petition fails to join necessary parties and to state a claim upon which relief may be granted, and the appeal is moot.

I must dismiss this appeal for lack of jurisdiction. The gravamen of petitioners’ complaint is that respondent improperly used executive sessions in selecting a candidate to fill the vacancy on the board. Inasmuch as the Open Meetings Law governs the use of executive sessions, any allegations with respect thereto may not be the basis for an appeal to the Commissioner of Education (Appeal of Gwinner, 37 Ed Dept Rep 262; Appeal of Van Zile, et al., 37 id. 213; Appeal of Marek, 35 id. 314). Public Officers Law "107 vests exclusive jurisdiction of complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner. Accordingly, the appeal must be dismissed.

Petitioners also request, for the first time in their reply, that I advise respondent of the appropriate use of executive sessions during the process of filling a vacancy on the board. This request is not properly before me inasmuch as petitioners may not introduce new issues or present a new demand for relief in their reply (8 NYCRR ""275.3 and 275.14). Moreover, as discussed above, I lack jurisdiction over this issue.

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