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Decision No. 14,598

Appeal of LAWRENCE EGODIGWE, et al., as Group A Members of the Board of Trustees of the United Nations International School from actions of Satya N. Nandan, as Chairman and Group B Member of the Board of Trustees of the United Nations International School regarding filling of vacancies on the Board of Trustees.

Decision No. 14,598

(July 12, 2001)

Robert H. Tembeckjian, Esq., attorney for petitioners

Proskauer Rose, LLP, attorneys for respondent, Carole O"Blenes, Esq., of counsel

MILLS, Commissioner.--Petitioners, "Group A" members of the board of trustees of the United Nations International School (UNIS), seek the reversal of decisions rendered by Satya N. Nandan, as a "Group B" member and chairman of the UNIS board of trustees (respondent), regarding the filling of certain trustee vacancies. The appeal must be dismissed.

UNIS is a private K-12 educational institution chartered by the New York State Board of Regents. Petitioners allege that certain rulings (regarding the term of office of certain trustees and the procedures for filling certain trustee vacancies) made by respondent at two meetings of the board of trustees violated various provisions of the Education Law and UNIS constitution. Petitioners request that I vacate those rulings; declare that certain trustee positions are, and have been, vacant; and declare that trustee vacancies may be filled only in accordance with specified procedures.

Respondent asserts that the appeal should be dismissed because the Commissioner of Education lacks jurisdiction over this matter; the purported service of the petition was defective; petitioners have not exhausted their remedies; the petition fails to state a claim upon which relief can be granted; and the petition is barred in whole, or in part, by the statute of limitations.

Education Law "310 prescribes the circumstances under which a party may appeal to the Commissioner of Education. Section 310 provides: "Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same..." Under the statute, the petition may be made in consequence of any action in seven enumerated categories, the first six of which clearly apply to "common schools" (see, Bowen v. Allen, 17 AD2d 12 [3d Dep"t 1962], aff"d 13 NY2d 663; Board of Education of the City School District of the City of Rome v. Ambach, 118 AD2d 932 [3rd Dep"t 1986]. The seventh category allows the Commissioner to entertain appeals "by any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools." (Education Law "310[7]). It is petitioners" contention that the term "common schools" modifies only the last phrase of "310(7); i.e., pertaining to "any other act" beyond the subject matter addressed in "this chapter." Thus, petitioners argue that insofar as "this chapter" pertains, interalia, to secondary schools and the trustees of private as well as public schools, the Commissioner has jurisdiction over this appeal.

Petitioners" assertion that "310(7) confers jurisdiction upon the Commissioner to determine the instant matter is unsupported by case law. As the court wrote in City of Rome v Ambach:

It is petitioner"s contention that Education Law "310(7) is so broad and apparently all encompassing as to require the Commissioner to determine an appeal of virtually anyone who has a grievance concerning any matter under the Education Law. That subdivision is not such a general vehicle for review. Indeed in Matter of Bowen v Allen (citations omitted), this court, evaluating a similar argument, observed that although the language contained in Education Law "310(7) "could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, the not stand alone, and...are circumscribed and modified by the contextual words which precede and follow them" (citation omitted). Accordingly, it was concluded that the statute deals throughout with the common schools and, inferentially, that it does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law (citation omitted)." (emphasis added)(City of Rome, supra).

As I have previously held, Education Law "310"s "reference to "common schools" is intended to mean the State"s public elementary and secondary schools, over which the Commissioner of Education and the former Superintendent of Public Instruction have long exercised supervisory powers." (Appeal of Interfaith Medical Center, 27 Ed Dept Rep 405, Decision No. 11,991). Because this appeal involves a dispute at a non-public school, it must be dismissed for lack of jurisdiction. In light of this disposition, I need not address the parties" remaining contentions.

Although this appeal is dismissed, I note that petitioners" claims involve a dispute over the internal governance of the institution and an interpretation of the institution"s constitution. If these matters cannot be amicably resolved among the parties, it would appear that the Supreme Court of the State of New York would be an appropriate forum for the resolution of this dispute.