Application of C.K., on behalf of his child, for the removal of MaryAnn Ambrosini as the director of pupil personnel of the Westhampton Beach Union Free School District.

Decision No 18,069

January 18, 2022

Kevin A. Seaman, Esq., attorney for respondent

ROSA., Commissioner.--Petitioner seeks the removal of MaryAnn Ambrosini (“respondent”) as the director of pupil personnel of the Westhampton Beach Union Free School District (“the district”).  The application must be denied.

Petitioner’s child (“the student”) has been the subject of multiple prior appeals pursuant to Education Law §§ 306 and 310 (Application of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,453; Application of a Student with a Disability, 58 id., Decision No. 17,452; Appeal of a Student with a Disability, 57 id., Decision No. 17,368; Appeal of a Student with a Disability, 57 id., Decision No. 17,367), as well as numerous decisions by impartial hearing officers and state review officers arising from due process complaints pursuant to the Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law.

In this proceeding, petitioner complains of a letter that respondent wrote to an individual who assists the district’s committee on special education in various capacities (“CSE member”).  Petitioner seeks a declaratory judgment that respondent violated the student’s rights.  Petitioner also seeks respondent’s removal from her position as director of pupil personnel.  Petitioner further contends that respondent’s letter to the CSE member constituted retaliation in violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”).

Respondent argues, among other defenses, that the appeal must be dismissed because she is not subject to removal under Education Law § 306.  Respondent additionally argues that the Commissioner of Education has no authority to issue declaratory judgments. 

Petitioner’s application for removal must be dismissed for failure to state a claim upon which relief may be granted.  Education Law § 306 (1) authorizes the Commissioner to remove “any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer.”  Under the Education Law, the term “school officer” includes any “elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system” (Education Law § 2 [13]; see Appeal of Johnston, 50 Ed Dept Rep, Decision No. 16,184).  The Commissioner has held that a director of pupil personnel is a school employee, not a school officer subject to removal under Education Law § 306 (Application of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,452; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Therefore, respondent is not subject to removal under Education Law § 306 and the application must be denied.

Additionally, the Commissioner of Education has no authority to review Section 504 claims in an appeal under Education Law § 310 or an application for removal under Education law § 306 (Appeal of C.N. and C.N., 60 Ed Dept Rep, Decision No. 17,954; Appeal of a Student with a Disability, 36 id. 322, Decision No. 13,736).  A claim of retaliation should be presented to a court of competent jurisdiction (see Weixel v Board of Educ. of City of New York, 287 F3d 138, 148 [2d Cir 2002] [reversing district court and finding that plaintiff stated claim of retaliation under Section 504]).[1]

Finally, to the extent that petitioner seeks a declaratory judgment, the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law § 310 or an application for removal under Education Law § 306 (Application of G.-J.F., 58 Ed Dept Rep, Decision No. 17,545; Application of Barton, 48 id. 189, Decision No. 15,832).

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

THE APPLICATION IS DENIED.

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