Application of BRENTWOOD YOUTH ACTIVITIES, INC. (BYA) and ELTON GEORGE, BYA PRESIDENT, for the removal of Robert Feliciano, G. Paula Moore, Eileen Felix, Julia Burgos, Simone Holder-Daniel, Maria Gonzalez-Prescod, and Cynthia Ciferri as Trustees of the Board of Education of the Brentwood Union Free School District and appeal from action of the Board of Education of the Brentwood Union Free School District, Richard Loeschner, as Superintendent of Schools, and Sara Suarez, as Employee, regarding school district policies.

Decision No. 17,821

(March 12, 2020)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Candace J. Gomez, Esq., of counsel.

TAHOE., Interim Commissioner.--Petitioners seek the removal of Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod, and Cynthia Ciferri as trustees (“trustees”) of the Board of Education of the Brentwood Union Free School District (“board” or “respondent board”) and appeal from action of the school district in processing a request to use district facilities.  The application must be denied and the appeal must be dismissed.

Petitioners Brentwood Youth Activities, Inc. (“BYA”) and Elton George, BYA President (collectively, “petitioners”) run a basketball program and other programs for school-age children.  In July 2019, BYA applied to use a gym in the Brentwood Union Free School District (the “district”) for its program.  By email dated August 12, 2019, respondent Sara Suarez asked petitioner Elton George to submit a “Not-For-Profit Brentwood Community-Based Organization’s Roster” form (“roster form”) for the 2019-2020 school year.  The roster form requests that organizations seeking to use the district’s facilities provide the name, street address, city/zip code, and telephone/cell number of the organization’s members.  Petitioners did not submit a roster form for the 2019-2020 school year.  Accordingly, petitioners’ application to use the district’s facilities was denied.  This appeal ensued.[1]

Petitioners seek the removal of all seven trustees from respondent board.  Petitioners also seek an order directing (1) respondent board and respondent superintendent Richard Loeschner to follow all state and federal laws “pertaining to privacy rights of families”; (2) the board, superintendent, and respondent Sara Suarez to “cease and desist from imposing submissions that are not required by School Board Policy on community organizations seeking to use school facilities”; and (3) the destruction of “all rosters pertaining to the usage of school facilities applications containing the names and/or contact information of minor children.”  Petitioners also request protective orders to preserve any and all documents pertaining to the practice of requiring rosters from community organizations.  Petitioners argue that the board policy violates the privacy protections of the Family Educational Rights and Privacy Act (“FERPA”) and Education Law §2-d.  Petitioners also argue that the board of education violated the public meetings law by having certain discussions in executive session.

Respondents argue that the petition must be dismissed because the Commissioner lacks jurisdiction over FERPA claims and Open Meetings Law claims.  Respondents assert that the district requests the names and contact information for children who participate in organizations that use the district’s facilities to verify that the district’s facilities are being used by Brentwood residents.  Respondents further argue that the names and contact information of children participants constitutes directory information, which is exempt from the privacy protections of Education Law §2-d.  Respondents seek dismissal of the petition and request that the Commissioner issue Certificates of Good Faith in accordance with Education Law §3811.

The appeal must be dismissed, in part, for lack of jurisdiction.  First, to the extent petitioners allege that respondents violated FERPA, the Commissioner lacks jurisdiction to consider FERPA claims.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 USC §1232g; 34 CFR Part 99; Appeal of Kosack, 53 Ed Dept Rep, Decision No. 16,611; Appeal of G.H.L., 46 id. 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509).  Accordingly, to the extent that the petition asserts FERPA claims, it must be dismissed.

Second, 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 Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Additionally, to the extent petitioners seek a determination that they were denied access to district facilities, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Respondents indicate that, subsequent to commencement of this appeal, petitioners provided the requested information and respondents approved petitioners’ application to use district facilities.  Therefore, to the extent petitioners complain of a denial of access, the appeal is dismissed as moot.

Petitioners’ request for “protective orders” preserving specific records and materials must be dismissed as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  Petitioners seek the preservation of “any and all documents pertaining to the practice of requiring rosters of students/children/players/etc from community organizations.”  The retention of school district records, however, is governed by Records Retention and Disposition Schedule ED-1 (8 NYCRR Appendix I) and there is no evidence in the record that respondents have not complied with this schedule.  In any event, the Commissioner has held that relief such as a protective order should be sought in a court of competent jurisdiction (Application and Appeal of Moss, 58 Ed Dept Rep, Decision No. 17,602; Appeal of Kalnitz, 53 id., Decision No. 16,600).[2]

Petitioners also submitted a reply in this matter containing new allegations and evidence not responsive to new material or affirmative defenses in the answer.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning first to the merits of petitioners’ appeal under Education Law §310, 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners’ challenge to board policy 1500 must be dismissed.  This policy provides that, as a condition of using district property during non-educational hours, not-for-profit Brentwood community-based organizations must submit “[a] roster listing members of the not-for-profit community-based organization.”  This policy refers to “1500-F3,” which is the roster form to which petitioner objects.

Education Law §414 provides that boards of education may permit the use of district grounds and other property when not in use for school business for certain specific purposes (see Appeal of Barse, 54 Ed Dept Rep, Decision No. 16,753; Appeal of Emilio, 33 id. 75, Decision No. 12,981).  The Court of Appeals has stated that it is well-established that local school boards are afforded deference “to exercise ultimate authority for access to students, school buildings and school property generally” (Matter of Lloyd v. Grella, 83 NY2d 537).  A school board’s determination in this regard may only be reversed if it is determined to be arbitrary or capricious (Matter of Spinowitz, 18 Ed Dept Rep 13, Decision No. 9,719).

Given respondent board’s broad authority to control access to its property when school is not in session, I find it reasonable that respondent board requires that not-for-profit, community-based organizations provide contact information concerning its members as a condition for use of district facilities.  Respondent board has a legitimate interest in ascertaining the names and other information of groups and individuals that use its facilities.  Respondent board further asserts that it requires all community-based organizations to provide such information.[3]  Therefore, petitioners have failed to meet their burden of proving that respondents’ roster form requirement is arbitrary or capricious.

Petitioners have similarly failed to prove the applicability of Education Law §2-d to this appeal.  Education Law §2-d concerns the privacy and security of student data, which is defined as personally identifiable information (PII) from student records of an educational agency, and outlines certain requirements for educational agencies and their third-party contractors to ensure the security and privacy of such protected data.  Respondent board’s policy requires applicants for the use of school facilities to submit a “roster listing members of the not-for-profit community-based organization.”  Petitioners have not alleged that the school has disclosed any PII from its student records or otherwise violated Education Law §2-d.  Petitioners have also failed to explain how Education Law §2-d would apply to an application submitted by a community-based organization to an educational agency.

To the extent petitioners suggest that respondents are now in possession of PII and that I should order them to “destroy” such information, there is no basis in the record to assume that respondents will not adhere to their legal responsibilities under, inter alia, FERPA and Education Law §2-d.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).  Therefore, I decline to speculate that respondents will not comply with their legal obligations.

Given the above conclusions, petitioners’ application for removal must be denied.  A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Gates, 57 Ed Dept Rep, Decision No. 17,264; Application of Kolbmann, 48 id. 370, Decision No. 15,888).  As indicated above, petitioners have not alleged or proven a violation of Education Law §§2-d, 414, or any other act pertaining to common schools, let alone a willful violation of such laws.  Accordingly, the application for removal must be denied (see Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253).[4]

One administrative matter remains.  Respondents have requested that I issue a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board trustee.  It is appropriate to issue such certification unless it is established on the record that the requesting board trustee acted in bad faith (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Appeal of Berger, 56 id., Decision No. 16,996; Appeal of Fletcher and Ferguson, 55 id., Decision No. 16,901).  In view of this decision, and the fact that there has been no finding that respondents acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that respondents are entitled to a certificate of good faith (Application of Wallace, 52 Ed Dept Rep, Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265).

I note that it is unclear on this record, however, whether respondent Sara Suarez falls within the class of employees who may receive a certificate of good faith pursuant to Education Law §3811.  Ms. Suarez is only identified as an “employee” of the Brentwood Union Free School District throughout the record.  Thus, it is unclear whether she is, for example, a “member of the teaching or supervisory staff ...” (Education Law §3811[1]).  Therefore, to the extent Ms. Suarez falls within the scope of Education Law §3811(1), which I am unable to determine on this record, I further certify that she is entitled to a certificate of good faith.

I have considered petitioners’ remaining arguments and find them to be without merit.

THE APPLICATION IS DENIED AND THE APPEAL IS DISMISSED.

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