Appeal of CLAYTON L. JOHN, from action of the New York City Department of Education, Yolanda Torres as Executive Superintendent of the Office of Family & Community Engagement, Gina Smalley as principal, Heather A. Fiorica as Family and Leadership Coordinator, and Richard A. Carranza in his capacity as Chancellor of the New York City Department of Education regarding a school district parents’ association election.

Decision No. 17,850

(June 12, 2020)

James E. Johnson, Corporation Counsel, attorney for respondents, Rachel K. Marcoccia, Esq., of counsel.

TAHOE., Interim Commissioner.--Petitioner appeals from a determination of the New York City Department of Education (“respondent NYC DOE”) that he is not a person in parental relation to his grandchild and, consequently, is ineligible to serve as a member of a parent association.  Petitioner also names Yolanda Torres, Gina Smalley, Heather A. Fiorica, and Richard A. Carranza in their official capacities (collectively, “respondents”) in connection with this claim.[1]  The appeal must be dismissed.

Petitioner is the grandparent of a student who attends P.S. 152, a public school served by respondent.  On June 20, 2019, elections were held for the parent association at P.S. 152.  At that time, petitioner nominated himself for president and was placed on the list of candidates.  Once nominations were closed, respondent Smalley, the principal of P.S. 152, informed petitioner that he was ineligible to take part in the election because he was not a parent of a child attending the school.  While the parties contest the sequence of events which followed, petitioner maintains that respondent Smalley had petitioner’s name removed from the list of candidates for parent association president. 

In a letter dated June 23, 2019, petitioner filed an election grievance with the superintendent’s office for New York City Geographic District 22.  Respondent Fiorica, the family leadership coordinator for District 22, issued a written response to petitioner’s grievance on July 2, 2019.  Respondent Fiorica determined that there was no violation of Chancellor’s regulation A-660 or the parent association’s bylaws because “[b]ased on the information provided ... by the school and documented in ATS, [the student’s] mother is the primary guardian and is documented as such in ATS.”  As a result, respondent Fiorica found no cause to overturn the election results.

In a letter dated July 8, 2019, petitioner appealed respondent Fiorica’s decision to respondent Torres, the executive superintendent of respondent NYC DOE’s Division of Family and Community Empowerment (FACE).  On July 25, 2019, FACE determined that petitioner’s challenges to the election were without merit and affirmed the superintendent’s decision.   

On August 19, 2019, FACE issued a second[2] determination with respect to petitioner’s appeal filed on July 8, 2019.  In this second determination, FACE more specifically addressed and rejected petitioner’s claim that he met the definition of a person in parental relation to the student.  This appeal ensued. 

Petitioner claims that respondents erred in concluding that he is not a person in parental relation to his grandchild.  Petitioner contends that his daughter designated him as “a person in parental relationship to” the student in May 2019 in accordance with General Obligations Law § 5-1551.  Petitioner alleges that respondents’ determination violated, inter alia, the U.S. Constitution, the New York City Charter, the Penal law, and Chancellor’s regulation A-660.  Petitioner further complains that FACE failed to issue a “letter affirming, reversing or modifying the superintendent’s decision” within five days of the appeal as required by Chancellor’s regulation A-660.  Petitioner additionally argues that respondent Torres has repeatedly violated the parent association election process and “is unlikely to follow it now.”  Petitioner maintains that respondent Fiorica’s decision on July 2, 2019 did not adequately address his claims and complains that previous complaints filed with FACE were not adjudicated in a timely fashion.

For relief, petitioner requests that the June 20, 2019 election results be rendered null and void, that all offices filled as a result of the June 20, 2019 election be vacated, and that new elections be held as soon as possible.  Petitioner further requests that respondent Smalley draft a letter stating that the designation of petitioner as a person in parental relation to the student is accepted, and that such acceptance be “imputed into the ATS Database.”[3]  Petitioner further requests that a cease and desist order be sent to respondent Smalley “not to interfere with the parent association election process.”  Petitioner additionally requests that respondent Torres respond to grievance appeals within five days as outlined in regulation and require respondents to update Chancellor’s Regulations A-660 definition of a parent eligible for membership in the parent association to include “person[s] in parental relation” to a child currently attending school.  Finally, petitioner requests such other relief as the Commissioner deems just and proper.    

Respondent argues that petitioner’s claimed violations of the New York City Charter and the Penal Law must be dismissed for lack of jurisdiction.  Respondent further argues that “to the extent that the petition can be construed as raising any challenge to DOE determinations made concerning” petitioner’s eligibility or candidacy for the 2017 and 2018 school years, such challenges are untimely.  On the merits, respondent contends that petitioner has not met his burden of proving that he is a person in parental relation within the meaning of Chancellor’s regulation A-660 or Education Law §2590-h(15).  Respondent further argues that petitioner has not provided any authority to support his assertion that General Obligations Law §15-A overrides Education law §2590-h(15). 

First, certain of petitioner’s claims must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Petitioner complains of several acts that occurred well before 30 days prior to his commencement of this appeal.  For example, he alleges that he was improperly removed from a parent association on October 17, 2017 and challenges previous decisions issued by FACE on May 15 and July 25, 2018.  While it is unclear whether petitioner seeks relief concerning these claims or merely included them as background information, to the extent petitioner is raising claims concerning acts that occurred more than 30 days prior to commencement of this appeal, they must be dismissed as untimely.

Petitioner further alleges that respondent failed to serve an answer within 20 days after service of the petition.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).  Petitioner served the instant petition on August 12, 2019.  Respondent’s affidavit of service indicates that the answer was served on petitioner on August 28, 2019, less than 20 days from service of the petition.  Accordingly, the answer is timely and I have considered respondent’s answer and the factual allegations contained therein.

With respect to petitioner’s claims that respondents violated petitioner’s rights under the U.S. Constitution, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810).  A novel claim of constitutional dimension or facial challenge to the constitutionality of a law, policy or regulation should be presented to a court of competent jurisdiction (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319).

I must also dismiss petitioner’s claims alleging that respondents violated the New York City Charter and the Penal Law, as these claims are not within the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310 (Appeals of C.K., 59 Ed Dept Rep, Decision No. 17,748) or the Penal Law (Application and Appeal of Moss, 58 Ed Dept Rep, Decision No. 17,602). 

Turning to the merits, Education Law §2590-h(15) provides that the Chancellor of the City School District of the City of New York (“Chancellor”) shall, by rule or regulation, provide for the involvement, including membership, in any parents’ association or parent-teacher association established pursuant to this subdivision, of a grandparent who is in parental relation to a child who attends a school within the jurisdiction of the community school district.  This statute further states that:

For purposes of this subdivision, a grandparent shall be considered to be in parental relation to a child when such grandparent has assumed care of such child because such child’s parents are not available due to death, imprisonment, mental illness, living outside the state, abandonment of the child, or other circumstances. A determination of whether a grandparent is in parental relation to a child shall be based upon the individual circumstances surrounding guardianship and custodial care of such child.

Respondent has implemented Education Law §2590-h(15) in Chancellor’s regulation A-660, which sets forth the basic rights and responsibilities for parent associations.  This regulation defines a “parent or guardian” as a “birth or adoption parent, step-parent, legally appointed guardian, foster parent, [or] ‘person in parental relation.’”  The regulation incorporates the definition of “person in a parental relation” utilized in Education Law §2590-h(15), further indicating that “[a] person who provides temporary care for a child” including a non-custodial relative, “does not qualify as a person in parental relation.”  The regulation additionally states that a building principal will resolve disputes as to whether an individual is a person in parental relation “based on documentation presented at the school.”  The regulation further notes that a “parent may not designate another individual to serve in his/her place as a member of the PA/PTA.”[4]

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).

Here, the record reflects that, in a letter dated May 12, 2019, petitioner’s daughter designated petitioner as “a person in parental relationship to” the student, to take effect on May 13, 2019 through May 12, 2020.  Another letter from petitioner dated May 12, 2019 indicates that petitioner “consent[ed] to being designated a person in [a] parental relationship” to the student.  However, there is no evidence in the record that petitioner has, as required by Education Law §2590-h(15), assumed care of the student because the student’s parent was unavailable due to death, imprisonment, mental illness, living outside the state, abandonment of the child, or a similar reason.  Moreover, petitioner makes no claim that he is the family appointed guardian or that the parents are unavailable.[5]  As a result, petitioner has not met his burden of proof and I cannot find FACE’s determination to be arbitrary or capricious. 

Petitioner contends that his daughter properly followed the procedure outlined in General Obligations Law §5-1551 to designate him as a person in parental relation to the student.  However, that provision only authorizes a parent of a minor to designate another person as a person in parental relation for a period not exceeding twelve months pursuant to sections 2164 and 2504 of the Public Health Law and sections 2 and 3212 of the Education Law.  Indeed, the Legislature has provided a more specific definition of “person in parental relation” for purposes of Education Law §2590-h(15).  It is well-settled that “a more specific statute [is] given precedence over a more general one” (Busic v. United States, 446 U.S 398, quoting Corley v. United States, 556 US 303; see also People v. McLaughlin, 93 Misc.2d 980 [“where two statutes, or two separate provisions in one statute, are in conflict with each other, and one of the provisions is general in nature while the other is specific, then it is settled law that the provision which is specific will control”]).  Therefore, I do not find that the general designation procedure described in the General Obligations Law controls over the specific procedure in Education Law §2590-h(15).

Petitioner also maintains that respondent Torres violated Chancellor’s regulations A-660 when she failed to issue a “letter affirming, reversing or modifying the superintendent’s decision” within five days of his appeal.  The Chancellor’s regulations indicate that FACE will “issue a letter affirming, reversing, or modifying the superintendent’s decision” within five days of receipt.  The final decision from FACE was issued on July 25, 2019, seventeen days following petitioner’s appeal.  Although this decision was not rendered within the regulatory timeline imposed by the Chancellor’s regulation, this administrative delay in and of itself  does not constitute a violation of due process mandating a judgment in petitioner’s favor (see Louis Harris & Assocs. v. deLeon, 84 NY2d 698 [Court of Appeals observed that it had “previously rejected the claim that lapse of time in rendering an administrative determination can, standing alone, constitute prejudice as a matter of law”]; Erdos v. N.Y. State Dep’t of Educ., 105 AD2d 504 [four-year delay not unreasonable and no evidence of prejudice]; Damianos v. Axelrod, 186 AD2d 564 [approximately four and one-half year delay did not result in substantial prejudice as there was no evidence of actual injury]).  Nevertheless, I remind respondents to adhere to the timelines set forth in Chancellor’s regulations A-660 with respect to the issuance of appeal decisions by FACE.   

Finally, petitioner’s argument that respondent Torres is unlikely to follow the proper parent association election process is premature and inherently speculative (see Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,482; Appeal of D.C., 57 id., Decision No. 17,245).  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Healey and Lindberg, 57 Ed Dept Rep, Decision No. 17,194; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

Given the disposition of this appeal, it is unnecessary to address petitioner’s remaining requests for relief, which are premised upon a finding that respondents acted unlawfully.

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

THE APPEAL IS DISMISSED.

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