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Decision No. 14,646

Application of T.D. for the removal of Marino D"Orazio as a member of the Board of Education of the Onteora Central School District.

Decision No. 14,646

(September 25, 2001)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of a member of the Board of Education of the Onteora Central School District ("the district") pursuant to Education Law "306. The application must be denied.

Petitioner"s daughter attends elementary school within the district. In the fall of 1998, the daughter, then a third-grader, was assaulted on the school bus by a male student. As a result of this incident, petitioner filed a notice of claim against the district in February 1999. The school board"s handling of this incident has been the subject of discussion between petitioner's family and the board for many months. Petitioner or his wife have appeared at school board meetings on March 27, June 6 and 19, July 10, September 11, October 30, and November 20, 2000, and January 8 and 18, 2001 to urge the board to further investigate the incident. At the January 18, 2001 meeting the board voted to go into executive session to discuss a number of matters, including the incident involving petitioner"s daughter.

Petitioner alleges that at the January 18 meeting respondent mentioned his daughter by name during the discussion of the motion concerning the executive session. Petitioner claims that other members of the board referred to the incident as the "sexual assault on the bus," without mentioning his family by name. He maintains that by using the family name in public, respondent violated the state Open Meetings Law and the federal Family Education Rights and Privacy Act ("FERPA").

Respondent admits to using the family"s last name during the discussion of the motion to enter into executive session. He denies identifying petitioner"s daughter by her first name. Respondent claims that either petitioner or his wife appeared at eight prior board meetings to discuss the incident and never requested privacy for their daughter. Respondent maintains that at one public meeting the Board president attempted to stop petitioner"s wife from mentioning her daughter"s name, suggesting the board save the discussion of the incident for executive session. However, she insisted that she wanted everyone to know what had happened to her daughter. Respondent also alleges that the petitioner filed a notice of claim, a public document, against the district which mentions his daughter by name.

Respondent also asserts that this appeal is untimely and fails to state a cause of action. Additionally, respondent claims that the Commissioner has no jurisdiction over the laws alleged to have been violated, and that petitioner has failed to join a necessary party. Petitioner's request for interim relief was denied on March 13, 2001.

As a threshold matter, the appeal must be dismissed as untimely. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner claims that the alleged violation occurred on January 18, 2001. However, the petition was not served until February 26, 2001, more than 30 days later. Petitioner offers as an explanation for the lateness of the petition that he was unable to access the appeal forms from the State Education Department's web-site, had to wait for them to arrive by mail, and needed assistance from my Office of Counsel in order to prepare them. Prior decisions of the Commissioner have held that, in the absence of unusual circumstances, ignorance of the appeals process is not a sufficient basis to excuse a delay (Appeal of Kirk, 39 Ed Dept Rep 567, Decision No. 14,313; Appeal of Mayer, 39 id. 195, Decision No. 14,212; Appeal of Kelly, 39 id. 164, Decision No. 14,203). Moreover, it appears that petitioner was advised of the correct web-site address by letter dated February 12, 2001. Accordingly, I do not find good cause for the delay, and the appeal must be dismissed as untimely.

The appeal must also be dismissed for lack of jurisdiction. Petitioner alleges that respondent violated the Open Meetings Law. Public Officers Law "107 vests exclusive jurisdiction over 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 (seee.g., Appeal of Goldin, 38 Ed Dept Rep 317, Decision No. 14,043, and cases cited therein). Inasmuch as the Open Meetings Law governs the use of executive sessions, allegations regarding the improper use of executive sessions may not be the basis for an appeal to the Commissioner of Education (Application of Goldin, 39 Ed Dept Rep 14, Decision No. 14,158; Appeal of Lambert, et al., 37 id. 588, Decision No. 13,935; Appeal of Gwinner, 37 id. 262, Decision No. 13,854). Therefore, petitioner's allegations concerning respondent and the January 18, 2001 executive session must be dismissed for lack of jurisdiction.

Commissioner also lacks jurisdiction to consider petitioner"s FERPA claims regarding the privacy rights of petitioner"s daughter. The United States Secretary of Education, and not the Commissioner of Education, has jurisdiction over alleged violations of FERPA (Appeal of Tucker, 39 Ed Dept Rep 824, Decision No. 14,393; Appeal of Lawson, 38 id. 713, Decision No. 14,124; Appeal of Schuler, 37 id. 512, Decision No. 13,915).

Education Law "306 authorizes the Commissioner to remove a member of the board of education for a willful violation or neglect of duty under the law (Education Law "306[1]; Application of Cimino, 39 Ed Dept Rep 583, Decision No. 14,319; Appeal of Fontana, 39 id. 515, Decision No. 14,297; Appeal of Rampello, 37 id. 153, Decision No. 13,830). To be considered willful, the board member's actions must have been intentional and with a wrongful purpose (Application of Cimino, supra; Appeal of Fontana, supra). I have no jurisdiction over the claims that petitioner alleges form the basis of grounds for removal of respondent from office. Therefore, petitioner has failed to establish facts sufficient to warrant removal of respondent from the board.

In view of the foregoing disposition, I need not address the parties" remaining contentions.