Decision No. 12,663

Jaspan, Ginsberg, Ehrlich, Schlesinger & Hoffman, attorneys for respondent, Carol M. Hoffman, Esq. and David S. Weglein, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent board of education's (the "Board") refusal to place an item on its August 1990 agenda and from the Board's failure to include certain information in its minutes in contravention of the Open Meetings Law (Public Officers Law '100 etseq.). Petitioner also alleges that the Board failed to respond adequately to his requests for information which were made pursuant to the Freedom of Information Law (Public Officers Law '84 etseq.). The appeal must be dismissed.

Petitioner attended the Board's July 1990 meeting, and the gravamen of the complaint centers on the conduct of that meeting and four requests made pursuant to the Freedom of Information Law. Petitioner objects to the Board's failure to include a report concerning the appraisal and subdivision plan of unused district land on the Board's agenda in July and August 1990. The Board had commissioned the report. Petitioner further objects that the minutes of the July 1990 meeting do not contain information as specified by the Open Meetings Law. Petitioner further alleges that the Board improperly reconvened a public meeting following its July 1990 executive session and thus avoided public scrutiny.

Petitioner requests that I order the Board to: (1) present the appraiser's report in a timely manner at a school board meeting with copies available to the public; (2) hold a new meeting for the July 1990 school board meeting; (3) accurately record minutes including salaries and length of probation for tenure; (4) disclose the superintendent's salary when it is approved at a board meeting in the event it is different from the budgeted amount and include the superintendent's contract and all other contracts as a part of the minutes; and (5) comply with the Freedom of Information Law.

Respondent in its answer raises several affirmative defenses, including an objection based on the timeliness of this appeal. With respect to items on the Board agenda, respondent maintains that it has the discretion to determine its agenda. Further, the Board urges that alleged violations of the Freedom of Information Law and the Open Meetings Law are not properly before me. The Board also maintains that in the event I consider the alleged violations of the Open Meetings Law and the Freedom of Information Law, that the respondent has in all circumstances complied with those laws.

With respect to the timeliness of this appeal, petitioner himself has acknowledged that he has failed to appeal some of the matters he has raised in a timely manner. 8 NYCRR '275.16 provides in pertinent part that "an appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of." The petitioner complains of acts performed by respondent at the July 2, 1990 school board meeting. Petitioner also complains about matters concerning the August 8, 1990 meeting. Petitioner, however, served his petition on September 14, 1990, and filed it on or about September 19, 1990. Petitioner's contention that his appeal was delayed as a result of his misunderstanding that relief could be obtained informally by virtue of his writing a letter to me is unavailing. Accordingly, any allegations regarding the Board's actions at its July and August meetings cannot be considered because they have not been raised in a timely fashion (Appeal of Keith Brown, 30 Ed Dept Rep 221).

Even if I were to address all of petitioner's claims, I would be constrained to determine only the issue of whether the Board should be compelled to include an item on its agenda. The other issues regarding the keeping of minutes in accordance with the Open Meetings Law and the Board's compliance with the Freedom of Information Law are not properly before me. It is well settled that alleged violations of the Open Meetings Law and the Freedom of Information Law must be pursued in Supreme Court, not in an appeal pursuant to Education Law '310 (Public Officers Law ''89[4][b] and 107; Appeal of Weaver, 28 Ed Dept Rep 183; Appeal of Crapster, 22 id. 29; Appeal of Alexandreena D., 30 id. 203; Appeal of Krasinski, 29 id. 375). Even where appeals regarding minutes have been entertained, the type of specificity in the minutes as requested by petitioner has not been mandated (Appeal of Mitchell, 21 id. 150).

Because boards of education have the right to formulate and control the agenda at school board meetings, the Board was wholly within its discretion in determining its agenda at its July and August meetings (Appeal of Davidson, 29 Ed Dept Rep 24).

Accordingly, petitioner's request that the Board be mandated to include an item on its agenda must fail.

THE APPEAL IS DISMISSED.

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