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Decision No. 16,450

Appeal of C.Z. from actions of the Board of Education of the Jordan-Elbridge Central School District and board member J.P. regarding student information.

Decision No. 16,450

(January 25, 2013)

The Law Firm of Frank W. Miller, attorneys for respondents, Frank W. Miller, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals certain acts allegedly committed by the Board of Education of the Jordan-Elbridge Central School District (“respondent board”) and board member J.P. (collectively “respondents”).  The appeal must be dismissed.

During the 2009-2010 school year, petitioner’s husband was the principal of Jordan-Elbridge High School, where her daughter was a senior.  Petitioner alleges that J.P. made disparaging remarks about her husband at the board’s May 18, 2010 annual meeting and was involved in a “plan” to remove her husband from his position.  Thereafter, at a meeting held in spring 2010 with petitioner’s husband, a representative of respondent board, and the board’s attorney, the issue of the absences of petitioner’s daughter from school arose.  Petitioner claims that at this meeting, the board’s attorney, an acquaintance of J.P., disclosed and discussed her daughter’s confidential medical information with the board, in violation of the federal Family Educational Rights and Privacy Act (“FERPA”).  Although the parties dispute whether petitioner’s husband disclosed this information to the board, petitioner claims that J.P. was the original source of delivery of this information to the board and its attorney.  Petitioner also claims that in July 2010, she asked to discuss the matter with the board in an executive session, and that the board denied her request in September 2010.  This appeal ensued.

Petitioner argues that respondents’ alleged actions were “inappropriate and/or in violation of the Education Law and FERPA” and seeks an order admonishing respondents therefor. 

Respondent argues, interalia, that the appeal must be dismissed on several procedural grounds, including lack of subject matter jurisdiction and standing, untimeliness, and failure to state a claim upon which relief may be granted. 

The Commissioner lacks jurisdiction to consider FERPA claims.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502).  Accordingly, petitioner’s claims that respondents disclosed her daughter’s medical condition in violation of FERPA must be dismissed. 

To the extent petitioner alleges that J.P. made disparaging remarks against her husband on May 18, 2010, such claims 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner commenced this appeal in October 2010, more than 30 days after the alleged conduct.  Accordingly, such claims are untimely and must be dismissed.   

Although not clearly articulated, to the extent petitioner attempts to allege violations of the Open Meetings Law through her claims that respondents declined to allow her to attend and to discuss certain issues at an executive session, such claims must also be dismissed.  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 McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886). 

With respect to petitioner’s request for a finding that respondents’ actions were “in violation of the Education Law,” petitioner has failed to allege which specific provision(s) of the Education Law she contends were violated and has failed to establish that respondents violated any specific provisions of such law.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Accordingly, petitioner has not carried her burden on claim that respondents violated the Education Law.     

Finally, to the extent petitioner requests that I admonish respondents for their alleged misconduct, such claim must also be dismissed.  It is well established that I do not have the authority to censure or reprimand a board member (Appeal of Oglesby, 51 Ed Dept Rep, Decision No. 16,311; Appeal of Kozak, 39 id. 278, Decision No. 14,237; Appeal of Kane, 34 id. 116, Decision No. 13,251).  I further note that to the extent petitioner seeks an advisory opinion, the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

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