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Decision No. 18,198

Application of CLIFFORD T. BRADSHAW for the removal of Jeffery Rivenburg as the records access officer of the Duanesburg Central School District.

Decision No. 18,198

(September 15, 2022)

Girvin & Ferlazzo, PC, attorneys for respondent, Erin R. Morris, Esq., of counsel

ROSA., Commissioner.--Petitioner seeks to remove Jeffrey Rivenburg from his position of records access officer (RAO) of the Duanesburg Central School District (respondent).  The application must be denied.

Given the disposition of this proceeding, a detailed recitation of the facts is unnecessary.  A third party submitted a Freedom of Information Law (FOIL) request to respondent.  Respondent provided some documents in response to the request.  Thereafter, petitioner wrote to respondent’s superintendent and the board of education to request removal of the RAO.  The board denied petitioner’s request on March 28, 2022.  This application for removal ensued.

Petitioner seeks an investigation into the district’s handling of FOIL requests and the removal of the RAO for alleged impropriety.

Respondent argues that petitioner lacks standing to challenge the FOIL denial because he did not submit the request at issue.  Respondent also argues that the Commissioner of Education lacks jurisdiction to conduct investigations, review FOIL decisions of local school districts, or adjudicate violations of the Open Meetings Law.

Petitioners’ FOIL and Open Meetings Law claims must be dismissed for lack of jurisdiction.  The Public Officers Law vests exclusive jurisdiction over alleged violations of FOIL (Public Officers Law § 89) and the Open Meetings Law (Public Officers Law § 107) in the Supreme Court of the State of New York (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Flippen, 57 id., Decision No. 17,296).  Therefore, such allegations may not be adjudicated in an appeal pursuant to Education Law § 310, and I have no jurisdiction to address the FOIL or Open Meetings Law allegations raised by petitioner.

Turning to the application for removal, Education Law § 306 (1) authorizes the Commissioner to remove “any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer.”  Under the Education Law, the term “school officer” includes any “elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system” (Education Law § 2 [13]; see Appeal of Johnston, 50 Ed Dept Rep, Decision No. 16,184).  As respondent contends, the RAO is not a “school officer” as defined by section 306, but rather a school district employee (Education Law § 2 [13]; Application of Passer, 57 Ed Dept Rep, Decision No. 17,274; Appeal of Berman, 46 id. 64, Decision No. 15,442).  As such, I have no authority to remove the RAO from his position.

Finally, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

I have reviewed petitioner’s remaining contentions and find them to be without merit.