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Decision No. 15,720

Appeal of DANIEL J. FAUVELL from action of the Board of Education of the South Country Central School District and Susan A. Agruso, Superintendent, regarding the filing of charges pursuant to Education Law §3020-a.

Decision No. 15,720

(February 1, 2008)

Bracken & Margolin, LLP, attorneys for petitioner, Patricia M. Meisenheimer, Esq., of counsel

Guercio & Guercio, attorneys for respondents, Raymond G. Keenan and Douglas A. Spencer, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges the filing of charges with the district clerk of the South Country Central School District and the subsequent vote by the district’s Board of Education (“respondent board” or “board”) to bring a disciplinary proceeding against him pursuant to Education Law §3020-a.  The appeal must be dismissed.

Petitioner is a tenured administrator who has been employed by the district since 1996.  On August 3, 2007, respondent Agruso presented disciplinary charges against petitioner to the district clerk pursuant to Education Law §3020-a(1).  On August 8, 2007, the board voted that probable cause existed to bring a disciplinary proceeding pursuant to Education Law §3020-a(2)(a).

Petitioner alleges that the charges are defective because they were filed on August 3, 2007, in violation of Education Law §3020-a(1), which requires that charges “shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve.”  Petitioner argues that the 2006-2007 school year ended on June 22, 2007, and that the 2007-2008 school year did not begin until September 4, 2007.  He asks that I stay the disciplinary proceeding and dismiss the charges.

Respondents claim that petitioner is a full-year administrator, that the 2007-2008 school year commenced on July 1, 2007, and that the filing of charges was proper because August 3, 2007, was during the school year for which petitioner was “normally required to serve.”

The appeal was commenced on September 10, 2007, and interim relief was denied on September 24, 2007.

The appeal must be dismissed for lack of jurisdiction.  Education Law §3020-a was substantially amended by Chapter 691, §3, of the Laws of 1994, effective for disciplinary charges filed on and after September 1, 1994.  Pursuant to that amendment, the Commissioner’s jurisdiction to review determinations of hearing officers, both final and non-final, has been removed (Appeal of Frajer, 41 Ed Dept Rep 403, Decision No. 14,725; Appeal of Codi, 40 id. 26, Decision No. 14,410; Appeal of McCall, 34 id. 484, Decision No. 13,390).  The amendment specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges (Education Law §3020-a[3][c][iii] and [iv]).  Petitioner’s request that I dismiss the charges would require my review of the merits, which is not within my authority (Appeal of McCall, 34 Ed Dept Rep 484, Decision No. 13,390).