Appeal of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District regarding a confidentiality agreement.

Decision No. 15,379

(March 21, 2006)

Harris Beach LLP, attorneys for respondent, Laura M. Purcell, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Greece Central School District ("respondent" or "board") regarding a confidentiality agreement. The appeal must be dismissed.

Petitioner is a resident and taxpayer in respondent's district. At the time of the commencement of this appeal, petitioner was also a member of the board. In the context of another appeal by petitioner, my Office of Counsel received confirmation that petitioner's term expired on June 30, 2005 and he is no longer a member of the board (seeAppeal of Hubbard, 45 Ed Dept Rep ____, Decision No. 15,316).

On July 13, 2004, while he was still a board member, petitioner requested this graduation data from respondent: the total number of graduates in June 2004, the number awarded a Regents diploma and the number awarded a non-Regents diploma. On August 23, 2004, respondent's superintendent replied with a total count of the number of graduates in June 2004, but did not provide petitioner with the breakdown of the number awarded Regents diplomas or the number awarded non-Regents diplomas. He advised petitioner that this data would be available in February or March 2005, when the data were verified and published in the New York State Report Card for the district.

On September 28, 2004, respondent held a special meeting and workshop. According to petitioner, the workshop portion of the meeting occurred after the special meeting and was closed to the public. He states that, during the workshop, respondent provided each board member with the opportunity to sign a confidentiality agreement regarding the graduation data. Petitioner states that he refused to sign it.

Petitioner contends that respondent acted improperly when it required him to sign a confidentiality agreement before disclosing graduation data to him, and that imposing terms and conditions on the use of non-confidential graduation data abridged his rights as a school board member and a district resident. Petitioner also contends that respondent violated the law by conducting public business at a closed meeting.

Respondent contends that petitioner has failed to state a claim upon which relief may be granted and that its policies relating to release of the graduation data did not violate the law. Respondent contends that petitioner's alleged violations of the Freedom of Information Law (FOIL) and Open Meetings Law must be dismissed for lack of jurisdiction.

Petitioner states that respondent's requirement that he sign a confidentiality agreement before releasing the graduation data improperly abridged his rights as a school board member. 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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). Since petitioner is no longer on the board, his rights as a board member are not at issue. Accordingly, this claim must be dismissed as moot.

Given that petitioner no longer serves on the board, his remaining claims are before me in his capacity as a district resident. As a district resident petitioner alleges, in essence, that respondent violated FOIL. Section 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 (Appeal of Milazzo, 43 Ed Dept Rep 294, Decision No. 14,999; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660). Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

Petitioner also alleges violations of the Open Meetings Law in reference to the September 28, 2004 meeting at which respondent offered petitioner the opportunity to sign the confidentiality agreement. 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 Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785). Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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