Appeal of T.W. from action of the Board of Education of the Naples Central School District and Brenda Keith, Superintendent, regarding disciplinary charges.

Decision No. 15,735

(April 3, 2008)

A. Andre Dalbec, Esq., School Administrators Association of New York State, attorney for petitioner

Harter Secrest & Emery LLP, attorneys for respondents, Steven G. Carling, Esq., of counsel

Decision No. 15,735

(April 3, 2008)

MILLS, Commissioner.--Petitioner challenges the actions of the Board of Education of the Naples Central School District (“board”) and Superintendent Brenda Keith (collectively “respondents”), in administratively processing charges pursuant to Education Law §3020-a.  The appeal must be dismissed.

Petitioner is a tenured administrator in the Naples Central School District.  On September 26, 2007, the superintendent preferred five charges of misconduct against petitioner.  That same evening, the board found probable cause to initiate a disciplinary proceeding pursuant to Education Law §3020-a against petitioner.  The charges were served on petitioner by certified mail on September 27, 2007, and were received by petitioner on September 28, 2007.  Petitioner timely requested a hearing on the charges on October 2, 2007.

Petitioner commenced this appeal on October 19, 2007, and interim relief was denied on October 31, 2007.

Petitioner alleges that the disciplinary proceeding against him is defective because the charges served on him do not comply with Education Law §3020-a and §82-1.3(b) of the Commissioner’s regulations.  Specifically, he alleges that the charges served upon him did not include a record of the votes of the board as to each of the five charges, as required by the regulation. 

Respondents generally deny any impropriety in the manner of commencing the disciplinary proceeding, and assert numerous defenses, including a claim that the Commissioner lacks jurisdiction to entertain this appeal.  Respondents also allege that on October 22, 2007, the next business day after the commencement of the appeal, the charges against petitioner were again mailed to him by certified mail, and this time included a complete record of the votes of the board on each charge.

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 nonfinal, has been removed (Appeal of Fauvell, 47 Ed Dept Rep ___, Decision No. 15,720; Appeal of Frajer, 41 id. 403, Decision No. 14,725; Appeal of Codi, 40 id. 26, Decision No. 14,410).  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). 

THE APPEAL IS DISMISSED.

END OF FILE