Appeal of LAWRENCE V. GROSSENBACHER, on behalf of his children THOMAS, WILLIAM AMELIA, and CHARLOTTE, from action of the Rockland County Department of Health, regarding a temporary exclusion order.

Decision No. 17,657

(June 17, 2019)

Law Office of Cynthia A. Augello, attorneys for respondent, Cynthia A. Augello, Esq., of counsel

BERLIN., Acting Commissioner.--Petitioner appeals the determination of the Rockland County Department of Health to temporarily exclude unvaccinated or partially vaccinated students from school in an area affected by a measles outbreak.  The appeal must be dismissed.

According to the record, petitioner’s children were students at a nonpublic school, the Green Meadow Waldorf School (“Green Meadow”), during the 2018-2019 school year.  By letter dated December 3, 2018, the Rockland County Department of Health informed Green Meadow that a temporary order to exclude unvaccinated or partially vaccinated students from school applied to Green Meadow.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 10, 2019.

The appeal must be dismissed as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  The pertinent portion of Education Law §310 reads as follows:

Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under [Education Law, Article 7].  The petition may be made in consequence of any action:

6-a. By a principal, teacher, owner or other person in charge of any school in denying a child admission to, or continued attendance at, such school for lack of proof of required immunizations in accordance with section twenty-one hundred sixty-four of the public health law.

7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.

In this appeal, petitioner is seeking to challenge the legality of the temporary exclusion order issued by the Rockland County Department of Health, contending that it exceeded its authority by ordering the exclusion of unvaccinated or partially vaccinated students from Green Meadow where there were no reported cases of measles in such school.  No acts on the part of Green Meadow or its officers and employees are alleged other than its compliance with the temporary exclusion order.  Pursuant to Public Health Law §12, any person who disobeys a lawful order issued under the authority of the Public Health Law is subject to a civil penalty, and, pursuant to Public Health Law §12-b, any person who willfully refuses to comply with a lawful order of a local health officer is guilty of a misdemeanor and may be subject to fines or imprisonment.  Thus, Green Meadow and its officers and employees are compelled to comply with the temporary exclusion order, and it is the action of the county department of health, and not Green Meadow, which has resulted in the exclusion of petitioner’s unimmunized children from the school.  Since petitioner is challenging the county department of health’s temporary exclusion order, and not the actions of Green Meadow or its officers or employees, I find that Education Law §310(6-a) does not confer jurisdiction over this appeal.

There is no statute that specifically grants the Commissioner authority to review the actions of a county department of health or to modify or annul an order of the commissioner of a county department of health as requested by petitioner.  Absent such a statute, the grant of jurisdiction under Education Law §310 does not extend to acts or omissions of a county or its officers or employees (see Appeal of Transport Workers Union Local 100, et al., 50 Ed Dept Rep, Decision No. 16,126; Appeal of Schiavi, 40 id. 615, Decision No. 14,569; cf. Appeal of Board of Educ. of Dansville Central School Dist., 56 Ed Dept Rep, Decision No. 17,046 [challenge to designation of district of residence by county social services district pursuant to Education Law §§310 and 3202(4)(f) dismissed as untimely]; Appeal of Board of Educ. of Cherry Valley-Springfield Central School Dist., 49 id. 397, Decision No. 16,061 [county social services district is a necessary party to an appeal Education Law §§310 and 3202(4)(f) from its designation of district of residence]; Appeal of Akron Central School Dist., 32 id. 411, Decision No. 12,870 [county social services may appeal pursuant to Education Law §§310 and 4006(3) a school district’s denial of fiscal responsibility under Article 81 of the Education Law, though the Commissioner lacks jurisdiction to order the social services district to reimburse the petitioner school district]).

Moreover, the courts and the Commissioner have declined to interpret the language of Education Law §310(7) so broadly as to afford a basis to review any matter arising under the Education Law.  Although the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, the words ... do not stand alone, and ... are circumscribed and modified by the contextual words which precede and follow them” (Matter of Bowen v. Allen, 17 AD2d 12, aff’d 13 NY2d 663).  Thus, as the Appellate Division, Third Department has held, “the statute deals throughout with the common schools and, inferentially, ... it does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law” (Matter of Board of Educ. of City School Dist. of City of Rome v. Ambach, 118 AD2d 932; see also Matter of Bowen v. Allen, 17 AD2d 12, aff’d 13 NY2d 663).  As the Commissioner held in Appeal of Interfaith Medical Center (27 Ed Dept Rep 405, Decision No. 11,991), the statutory reference to “common schools” means the State’s public elementary and secondary schools.  Accordingly, the courts and the Commissioner have repeatedly declined to interpret Education Law §310(7) as conferring jurisdiction to review actions of postsecondary institutions (see e.g. Matter of Verber v. Sobol, 169 AD2d 1012 [holding that “there is no statutory basis” for Commissioner to review student’s dismissal from program at the State University of New York]; Matter of Bowen v. Allen, 17 AD2d 12, aff’d 13 NY2d 663 [holding that the Commissioner has no jurisdiction to review failure of the State University of New York to renew teaching appointments]; Appeal of Van Vleet, 58 Ed Dept Rep, Decision No. 17,538; Appeal of Interfaith Medical Center, 27 id. 405, Decision No. 11,991).  Like a postsecondary institution, a county department of health is not a public elementary or secondary school whose actions are reviewable under the language of Education Law §310(7), and therefore, under the circumstances presented here, such language does not confer upon me jurisdiction to review the county department of health’s actions.

In light of this disposition, I need not address petitioner’s remaining contentions.

THE APPEAL IS DISMISSED.

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