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Commissioner of Education lacks jurisdiction to consider appeals involving FOIL, the Open Meetings Law and allegations of defamation

Commissioner of Education lacks jurisdiction to consider appeals involving FOIL, the Open Meetings Law and allegations of defamation
Appeal of P.S. from action of the Board of Education of the City School District of the City of Tonawanda regarding termination of employment, Commissioner of Education Decision No. 15,958, (July 29, 2009)

P.S. served as clerk of the board commencing December 1999, and also served as Director of Continuing/Community Education (?Director?) since December 2000.

In October 2008, a harassment complaint was filed by some district employees against P.S. The complaint was investigated by the district?s Harassment Officer, who criticized certain of P.S.?s behaviors but found that they did not rise to the level of harassment, and dismissed the complaint.

P.S. then filed a complaint against the Harassment Officer for ?creating a hostile work environment detrimental to Continuing Education.? Ultimately the board president prepared a document outlining certain ?issues? and ?expectations? with respect to P.S.?s activities, both in her capacity as clerk and as Director. According to the affidavit of the board president, ?[P.S.] not only refused to accept it, but threw it back at her and left the building.?*

On December 9, 2008, the board unanimously voted both to abolish the Director position and terminate P.S. from her position as clerk of the board.

P.S. appealed the Board?s action to the Commissioner of Education complaining that ?certain language contained in the board resolution that terminated her employment as clerk, referring to 'certain issues' that have arisen, and stating that petitioner 'refused to engage in any discussions and was guilty of gross insubordination . . .'? She contended that the wording of the resolution violated Commissioner?s regulation 8 NYCRR §84.2, and demands compensation for lost wages and defamation.?**

§84.2, Examination of school employee personnel records by the board of education, provides, in pertinent part, that such examination ?shall be conducted only at executive sessions of the board.? Any board member, however, may request that the personnel records of a designated employee or employees to an open meeting of the board, at which time ?[t]he board shall then determine whether to conduct an executive session for the purpose of examining such records.?

After considering a number of procedural issues, the Commissioner noted that P.S. did not specifically allege that either her termination as clerk or the abolition of her position of Director was unlawful. According to the record:

[1] the position of clerk was an exempt position and thus P.S. served at the pleasure of the Board; and

[2] the position of Director was abolished because the duties were absorbed by another position.

As to the allegations that the board violated §84.2 the Commissioner said the subdivision ?governs the procedure pursuant to which a board of education may examine an employee?s personal records, and does not govern the content of a board resolution.? The Commissioner then observed that the Commissioner of Education does not have jurisdiction to consider such claims and any alleged defamation claims P.S. had in this regard ?may be raised in a court of competent jurisdiction.?

As to the claims raised by P.S. with respect to her FOIL requests and allegations involving the State's Open Meetings Law with respect to the board?s executive session on December 9, 2008, the Commissioner said that both must be dismissed, again for ?lack of jurisdiction.?

The Commissioner explained that §89 of the Public Officers Law ?vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.?

Similarly, said the Commissioner, §107 of the Public Officers Law ?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.?

The Commissioner then dismissed the appeal.

* The Commissioner?s decision states that shortly thereafter P.S. filed a series of complaints to the Equal Employment Opportunity Commission, the State Education Department, and the National Counsel on Disability, and filed a series of Freedom of Information Law (?FOIL?) requests with the district, which she claimed were not properly answered.

** P.S., however, did not ?specifically allege that either her termination as clerk or the abolition of her position as Director was unlawful.?

The Commissioner?s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume49/d15958.htm

Full post as published by New York Public Personnel Law on August 06, 2009 (boomark / email).