Application of M.K. for the removal of Matthew Gribbin as president of the Board of Education of the Smithtown Central School District.

Decision No. 18,236

(February 7, 2023)

Sokoloff Stern LLP, attorneys for respondent, Leo Dorfman, Esq., of counsel

ROSA., Commissioner.--Petitioner seeks the removal of Matthew Gribbin (“respondent”) as president and member of the Board of Education of the Smithtown Central School District (the “board”).  The application must be denied. 

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Smithtown’s board policy requires speakers at board meetings to identify their names and addresses.  Petitioner is a resident of the Smithtown Central School District.  She has previously sought to avoid giving her last name or street address due to concerns for her family’s safety. 

Petitioner seeks respondent’s removal from the board for enforcing this policy, which she alleges violates the board’s Ethics Code.  Petitioner also argues that I should invalidate the board’s policy that speakers are required to give names before speaking because it violates the Open Meetings Law.

The application must be denied on procedural grounds.  Section 275.8 (a) of the Commissioner’s regulations, which is made applicable to removal proceedings by Commissioner’s regulation § 277.1, requires that the petition be personally served upon each named respondent.  Here, petitioner’s affidavit of service indicates that she served respondent’s secretary, “who is duly authorized to accept service.”  While a person in the office of a superintendent may have authority to accept service on behalf of the school district, this regulatory provision is inapplicable to applications for the removal of school officers (8 NYCRR 275.8 [a]).  As such, petitioner’s application to remove respondent must be denied (Appeal of Roth, 25 Ed Dept Rep 335, Decision No. 11,605). 

Additionally, the removal application is defective because petitioner failed to include a notice of application for removal with the petition as required by section 277.1 of the Commissioner’s regulations.  Section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832).  Thus, a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).[1]

Even if the appeal were not subject to dismissal on procedural grounds, petitioner’s principal claim—that the board’s policy requiring individuals to give their names before speaking violates the Open Meetings Law—is outside the scope of an appeal to the Commissioner.  Public Officers Law § 107 vests exclusive jurisdiction over alleged violations of the Open Meetings Law in the Supreme Court of the State of New York (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, such allegations may not be adjudicated in an appeal pursuant to Education Law § 310, and I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

I nevertheless note that the Committee on Open Government has squarely addressed this issue in multiple advisory opinions (see e.g. Comm on Open Govt OML-AO-5607 [2019] [“…a public body may request that a person provide his or her name or other identifier, but that a person may not be required to do so in order to attend, speak or otherwise participate relative to a meeting of a public body”]; Comm on Open Govt OML-AO-2717 [1997] [“…I do not believe that a public body could validly require that those who attend or seek to attend identify themselves by name, residence or interest”]).  Petitioner submitted several such opinions as exhibits to the petition.  Respondent indicates that, after receipt of the instant petition, the board “voted against suspending” its policy to conform to these opinions.  As such, I am transmitting a copy of this decision to the Committee on Open Government for appropriate action.

In light of the foregoing, I need not address the parties’ remaining contentions.

THE APPLICATION IS DENIED.

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