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Decision No. 14,843

Appeal of EDWIN TABER from action of the Board of Education of the City School District of the City of Oswego relating to the adoption of a board member removal policy.



(March 7, 2003)


Michael J. Stanley Law Office, attorneys for respondent, Michael J. Stanley, Esq., of counsel 

MILLS, Commissioner.--Petitioner challenges the board member removal policy of the Board of Education of the City School District of the City of Oswego ("respondent").  The appeal must be dismissed.

On July 1, 2002, respondent amended its policy pertaining to resignation and dismissal of board members by adding language relating to the authority of respondent to remove a board member for misconduct.

Petitioner seeks an order invalidating the new policy. Petitioner argues that Education Law "1709(18), which authorizes boards of education to remove members for official misconduct, is preempted by Education Law "1706, which grants the Commissioner of Education the authority to remove a school board member under certain circumstances. Petitioner further submits that Education Law "1709(18) is defective because it does not specifically define what conduct rises to the level of misconduct warranting removal and that board members lack the competence to determine the same.  In the alternative, petitioner seeks an order that would require respondent to receive permission from the Commissioner to proceed on official misconduct charges until the Commissioner establishes rules that set forth the standards to be used to define misconduct and the training and experience necessary for the board to proceed with official misconduct deliberations.  He also asserts that, until the Commissioner determines whether a review by a committee of citizens that would serve as a "grand jury" is appropriate and necessary, the board may not proceed to remove a board member.  Finally, petitioner appears to claim that failing to invalidate the policy would result in the improper prosecution of Open Meetings Law issues.

Respondent asserts that its actions were entirely lawful and seeks to have the petition dismissed.

The appeal must be dismissed.  The addition to respondent"s policy is within its statutory authority.  Pursuant to Education Law "1709(18), the board of education of every union free school district has the power, among other things, "[t]o remove any member of their board for official misconduct" after a hearing.  A written copy of the charges must be served at least ten days before the hearing and the board member must be "allowed a full and fair opportunity to refute such charges before removal" (Education Law "1709[18]).  This same authority is extended to respondent, a small city school district, through Education Law "2503(1).  Petitioner's preemption argument is without merit.  Education Law "1706 does not conflict with or limit the authority of a board of education to remove board members.  Rather, it provides separate and distinct statutory authority for the Commissioner of Education to remove a member of a board of education under certain circumstances.

Moreover, a decision to remove a member of a board of education pursuant to Education Law "1709(18) may be reviewed by the Commissioner of Education pursuant to Education Law "310 (see, Appeal of Gill, 42 Ed Dept Rep ___, Decision No. 14,785; Appeal of Balen, 40 id. 479, Decision No. 14,532).  Thus, a process already exists to address petitioner"s concern that board members may be removed for improper reasons.

With respect to petitioner's claim that respondent's policy violates 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 (Appeal of Burnett, 40 Ed Dept Rep 403, Decision No. 14,511; Application of Lilker, 40 id. 305, Decision No. 14,486).

Finally, petitioner improperly seeks an advisory opinion when he asks the Commissioner to determine the standards and process to be used by respondent to remove a board member.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law "310 (Appeal of a Student with a Disability, 42 Ed Dept Rep ___, Decision No. 14,791; Appeal of Hillhouse, 41 id. ___, Decision No. 14,720; Appeal of Huber, et al., 41 id. ___, Decision No. 14,676).