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Decision No. 13,940

Appeal of DENNIS COLEMAN from action of Rudolph Crew, Chancellor of the Board of Education of the City School District of the City of New York, regarding a board member suspension.

Decision No. 13,940

(May 18, 1998)

Dominick A. Fusco, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Chlarens Orsland, Esq., of Counsel

MILLS, Commissioner.--Petitioner challenges a decision of the Board of Education of the City School District of the City of New York ("the city board"), to uphold an order by Rudolph Crew, Chancellor of the city board ("the Chancellor"), to suspend him as board member of Community School District 8. The appeal must be dismissed.

Following an inquiry into an incident at a public community school board meeting on October 2, 1996, and pursuant to his under authority Education Law ' 2590-l, the Chancellor notified petitioner by letter dated October 29, 1996 that he was suspended for the remainder of the fall school term (through January 31, 1997). The Chancellor summarized his reasons as follows:

I find that your behavior went beyond that of antagonism and rudeness and crossed the line beyond which elected school board members can go. In my judgement, your vilification of parents, as well as our shouting at colleagues and staff, at a public school board meeting are indefensible. During the turmoil, the lack of control you exhibited led to a school board employee being injured.

Pursuant to Education Law ' 2590-l(2), petitioner appealed the Chancellor's order to the city board on the grounds that (i) the conciliation meeting called by the Chancellor was illegal, (ii) the Chancellor's actions violated petitioner's constitutional rights of equal protection, due process, and free speech; (iii) no one was assaulted at the meeting; (iv) any allegations that petitioner's actions led to the injury of a school employee were not within the jurisdiction of the Board of Education; (v) the Chancellor violated the associational rights of citizens under the First and Fourteenth Amendments to support, elect and be represented by school board members they choose; (vi) the Chancellor violated the Federal Voting Rights Act by failing to preclear the removal of an elected school board member; (vii) there is a pattern of racial discrimination in the Chancellor's actions of removing or suspending school board members; and (viii) the actions were illegal, arbitrary, capricious and discriminatory.

On January 22, 1997, the city board upheld the Chancellor's action and denied the appeal. Although the board dismissed the appeal as untimely, it discussed the issues raised by petitioner and failed to find that the Chancellor's actions were arbitrary, capricious or contrary to law or sound educational policy.

This appeal ensued. Petitioner asks me to reverse the decision of the city board and remove the order of suspension. Respondent contends that petitioner has failed to meet his burden of proof that respondent's determination was arbitrary, capricious or made in bad faith and that respondent's actions were legal, proper and in conformity with applicable laws and regulations.

As a preliminary matter, this appeal must be dismissed as untimely. A suspended community board member may appeal the final determination of the city board to the Commissioner of Education within 15 days of the issuance of the determination (former Education Law ' 2590-g(10)(c); 8 NYCRR 113.25). The city board's determination was dated January 22, 1997, and this appeal was commenced February 21, 1997, more than 15 days later. Although Commissioner's regulation ' 275.16 sets forth the general rule that appeals to the Commissioner must be instituted within 30 days of the making of the decision complained of, this appeal is governed by the more specific provisions cited above, and since the appeal was not commenced within 15 days of the city board's decision, it must be dismissed (Matter of Parents Ass'ns of Junior High Schools 202 and 210 and Intermediate School 226, Queens County, 20 Ed Dept Rep 22).

Furthermore, as to the appeal below the Commissioner of Education will not substitute his judgment for that of the city board, when the board is acting as an appeal board, absent a showing that the challenged decision is arbitrary, capricious or is in some manner contrary to law or the dictates of sound education policy (Appeal of Coca, 27 Ed Dept Rep 283; Matter of Parents Ass'ns of Junior High Schools 202 and 210 and Intermediate School 226, Queens County, supra).

In the underlying appeal, the city board dismissed petitioner's appeal as untimely. Commissioner's regulation ' 113.3 requires that an appeal by a suspended community board member from a chancellor's order to the city board be commenced within 15 days after the order of the chancellor from which the appeal is being taken by filing a statement of appeal with the secretary of the city board. The Chancellor's order was issued on October 29, 1996. The city board's decision states that petitioner's papers, although dated November 5, 1996, were delivered to the Office of Legal Services on November 18, 1996 and were never filed with the Secretary of the City Board. The city board dismissed the appeal as untimely since petitioner failed to file the appeal within the required time limit.

In this appeal, petitioner fails to address the finding of untimeliness in the appeal below. Therefore, I must conclude that the determination of the city board was not arbitrary, capricious or unreasonable.

Due to the disposition of this appeal, it is not necessary for me to address petitioner's other contentions.