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Decision No. 15,442

Appeal of GARY BERMAN, on behalf of his daughter Heather, from action of the Board of Education of the Valley Stream Central High School District regarding a personnel decision, and application for the removal of Albert T. Chase as Deputy Superintendent.


Decision No. 15,442


(August 7, 2006)


Guercio and Guercio, attorneys for respondents, John P. Sheahan, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Valley Stream Central School District (“respondent board” or “board”) to hire Albert T. Chase (“Chase”).  Petitioner also seeks the removal of Chase as deputy superintendent for the district.  The appeal must be dismissed and the application must be denied.

In 2001, Chase was appointed to the position of assistant superintendent of finance and operations in the district.  In 2004, Chase was promoted to the position of deputy superintendent.  In both positions, he served as Title IX Coordinator and Records Access Officer.

Petitioner contends that the initial appointment of Chase was illegal.  He further argues that he has failed to perform his duties as Title IX Coordinator and Records Access Officer and therefore should be removed from his position as deputy superintendent.

Respondent board argues that petitioner lacks standing and that the appeal and application should be dismissed for failure to join a necessary party.  Respondent board further contends that certain claims are time barred and that the Commissioner does not have jurisdiction over petitioner’s claims arising under the Freedom of Information Law (“FOIL”).

Initially, I note that I have accepted the amended affidavits submitted by Chase and the district’s superintendent.  With respect to petitioner’s reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer (see 8 NYCRR �� 275.3 and 275.14).

Respondent board contends that petitioner lacks standing.  Petitioner is a resident of the district and thus has standing to bring a removal proceeding pursuant to Education Law �306 (Application of Dunham, et al., 42 Ed Dept Rep 298, Decision No. 14,860; Application of Wilson, 41 id. 196, Decision No. 14,663; Application of Eisenkraft, 38 id. 553, Decision No. 14,092).  I also find that petitioner has standing to challenge the board’s refusal to terminate Chase since petitioner’s claims stem directly from Chase’s alleged failure to adequately respond to petitioner’s FOIL requests and Title IX complaints (see Appeal of Middleton, 40 Ed Dept Rep 102, Decision No. 14,431; Appeal of Taber, et al., 32 id. 346, Decision No. 12,850).

Respondent board also argues that petitioner failed to join Chase as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Chase is named in the caption and was served with a copy of the notice of petition and petition.  Accordingly, I find that Chase has been joined in this matter and decline to dismiss the appeal and application on that basis.

To the extent petitioner seeks the removal of Chase pursuant to Education Law �306, the application must be dismissed.  Education Law �306 authorizes the Commissioner to remove a “trustee, member of the board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer…” Education Law �2(13) defines “school officer” by identifying a number of positions specifically, as well as including any “other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.”  “Deputy Superintendent” is not specifically enumerated as a school officer within the statute.  Based on the record before me, Chase is a district employee, not a school officer subject to removal under �306 (seeAppeal of Eagelfeld, 36 Ed Dept Rep 186, Decision No. 13,696) (Commissioner determined that an assistant superintendent in a union free school district was not an officer, but an employee of the school district).

Moreover, with respect to petitioner’s challenge to Chase’s initial appointment and the alleged misconduct that occurred more than 30 days before the application was instituted, the appeal and application must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The 30-day limitation period also applies to a removal application made pursuant to Education Law �306 (8 NYCRR �277.1; Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Bean, 42 id. 171, Decision No. 14,810). Petitioner has not provided good cause for his delay and accordingly, those portions of the appeal and application must also be dismissed as untimely.

To the extent petitioner claims that Chase violated the Freedom of Information Law, the appeal and application must be dismissed for lack of jurisdiction.  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations 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 Milazzo, 43 Ed Dept Rep 294, Decision No. 14,999; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

Petitioner’s federal claims must be dismissed as well since an appeal or application to the Commissioner, pursuant to Education Law ��306 and 310, is not an appropriate forum to adjudicate claims under Title IX of the Education Amendments of 1972 (see 20 U.S.C. �1681 and 34 C.F.R. �106.71).

Although the appeal and application are denied for the foregoing reasons, one administrative matter remains.  Chase has requested that I grant him a certificate of good faith pursuant to Education Law �3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify respondent Chase for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of his duties as deputy superintendent.  It is appropriate to issue such certification unless it is established on the record that the requesting employee acted in bad faith (Application of Mazile, 45 Ed Dept Rep ___, Decision No. 15,356; Application of Lilly, 43 id. 459).  On the evidence in the record before me, I find Chase is entitled to receive a certificate of good faith.

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