Skip to main content

Decision No. 17,935

Appeal of PIERRE CIRIC from action of the New York State Education Department and the Board of Regents of the University of the State of New York regarding deaccession approval.

Decision No. 17,935

(October 28, 2020)

ROSA., Interim Commissioner.--Petitioner challenges alleged determinations of the Deputy Commissioner of Cultural Education for the New York State Education Department (“SED”) and individual members of the Board of Regents of the University of the State of New York (“BOR”) (collectively, “respondents”)[1] regarding the proposed deaccession of items by the Town of Salem, New York.[2]  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Briefly, petitioner alleges that respondents improperly approved the proposed deaccession of “selected furniture pieces” by the Georgi Museum, which is owned and operated by the Town of Salem, New York.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 9, 2020.

Petitioner contends that respondents’ approval of the deaccession violated 8 NYCRR §3.27, the public trust doctrine and the State Administrative Procedure Act (“SAPA”).  For relief, petitioner seeks a declaration that such approval is “void”; an order enjoining respondents from “implementing or enforcing any authorization, guidance, determinations, approvals, clearance or other consent” regarding the proposed deaccession as well as “any future deaccession-related transaction[s] similar to” the deaccession; and an order directing respondents to issue “a press release notifying the public and the regulated community” that respondents’ “authorization” of the deaccession “has been vacated.”

The appeal must be dismissed for lack of jurisdiction.  It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by employees or officers of the State Education Department (see Appeal of Keating, 59 Ed Dept Rep, Decision No. 17,773; Appeal of Carmel Academy, 56 id., Decision No. 16,976; Appeal of the School for Language and Communication Development, 46 id. Rep 536, Decision No. 15,586; Appeal of Friends to the Elderly, Youth & Family Ctr., Inc., 46 id. 227, Decision No. 15,489).  Such actions can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.

Similarly, a petitioner may not challenge an action of the BOR or its members in an appeal pursuant to Education Law §310.  The pertinent portion of Education Law §310 reads as follows:

Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article.  The petition may be made in consequence of any action:

7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.

Although the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, the words ... do not stand alone, and ... are circumscribed and modified by the contextual words which precede and follow them” (Matter of Bowen v. Allen, 17 AD2d 12, 14 [3d Dept 1962] [dismissing petition challenging Appeal of Bowen et al., 1 Ed Dept Rep 534, Decision No. 6,795], aff’d without opn 13 NY2d 663 [1963]).  Accordingly, courts have held that “the statute deals throughout with the common schools and, inferentially, ... does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law” (Matter of Board of Educ. of City School Dist. of City of Rome v. Ambach, 118 AD2d 932, 934 [3d Dept 1986]; see Matter of Bowen, 17 AD2d at 15).[3]  Therefore, Education Law §310 provides no basis to review an alleged act or omission by the BOR or its members.

In light of this determination, I need not address petitioner’s remaining contentions. 




[1] Although petitioner did not properly name respondents in the caption and instead identified only SED and BOR – as reflected in the caption above – I need not determine the legal effect of this omission given the disposition of the appeal.


[2] Petitioner originally challenged proposed deaccessions by two other museums located in New York State.  By letters dated October 13 and 15, 2020, petitioner requested to strike all claims and allegations concerning these museums from the petition.


[3] Additionally, I note that the Commissioner has held that an appeal to the Commissioner of Education under Education Law §310 is not the appropriate forum to challenge compliance with the rulemaking procedures set in SAPA (Appeal of C.K., et al., 59 Ed Dept Rep, Decision No. 17,748).