Education Law section 310 appeals to the Commissioner of Education.
Purpose:
To clarify, update and prescribe Education Law section 310 appeal procedures and requirements.
Summary of proposed rule (Full text is posted at the following State website http://www.counsel.nysed.gov/home1.html):
The State Education Department proposes to amend Parts 275 and 276 and section 100.2(y) of the Regulations of the Commissioner of Education, regarding the procedures for bringing appeals to the Commissioner of Education pursuant to Education Law section 310. The following is a summary of the provisions of the proposed rule.
Section 275.3 is revised to clarify procedures for the submission of additional pleadings.
Sections 275.5 and 275.6 are revised to clarify requirements for verification of pleadings by a corporation, limited liability company (LLC), limited liability partnership (LLP) or other business entity.
Sections 275.8 and 275.9 have been revised to clarify procedures for the service of a petition when the last day for service falls on a Saturday, Sunday or legal holiday, to clarify procedures for completion of service by private express delivery, and to provide a form for affidavit of service by private express delivery.
Section 275.11 has been revised to add cross citations to section 276.1 if a stay is being requested, and to section 277.1 if removal of a school officer is sought.
Section 275.12 has been revised to require in appeals involving student discipline, that the school district include with its answer the record of the disciplinary hearing prepared in accordance with Education Law section 3214, which shall include the transcript of the hearing, in either stenographic or tape recorded form, and any documents admitted into evidence.
Section 275.13 has been revised to clarify that the commissioner, in his/her sole discretion, may excuse a failure to serve and answer within the time prescribed for good cause shown and that the reasons for such failure shall be set forth in the answer.
Section 275.15 has been revised to clarify requirements for representation by an attorney of an individual party, a school district, and a corporation, LLC, LLP or other business entity.
Section 275.16 has been revised to clarify that the Commissioner may, in his/her discretion, and at any stage of the proceedings, dismiss an untimely appeal.
Section 275.18 has been added to specify requirements and procedures for the consolidation of appeals.
Section 276.1 has been revised to clarify service requirements for affidavits in opposition to an application for a stay order.
Section 276.2 has been revised to provide that the Office of Counsel will notify parties with respect to a request for oral arguments, only in the event the request is granted.
Section 276.3 has been revised to clarify requirements and procedures for seeking extensions of time to answer or reply.
Section 276.4 has been revised to clarify procedures for submission of memoranda of law.
Section 276.5 has been revised to clarify procedures for submission of additional affidavits, exhibits and other supporting papers.
Section 276.9 has been revised to clarify procedures for the dismissal of appeals.
Provisions throughout the regulations are revised to update or correct terminology, e-mail and regular mail addresses and telephone numbers, and obsolete, superceded provisions in 275.9, 275.11, 275.13, 275.14 and 276.4, relating to pleadings in appeals concerning pupils with handicapping conditions, have been deleted.
Text of proposed rule and any required statements and analyses may be obtained from:
Anne Marie Koschnick, Legal Assistant, Education Department, Office of Counsel, Education Bldg., Rm. 148, Albany, NY 12234, (518) 473-8296, e-mail: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Kathy A. Ahearn, Counsel and Deputy Commissioner for Legal Affairs, Office of Counsel, Education Bldg., Rm. 148, Education Department, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, e-mail: legal@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents as its head, and authorizes the Regents to appoint the Commissioner as chief administrative officer of the Department, which is charged with the general management and supervision of public schools and the educational work of the State.
Education Law section 207 authorizes the Regents and Commissioner to adopt rules and regulations implementing State law regarding education.
Education Law section 215 provides the Commissioner with authority to require schools to submit reports containing such information as the Commissioner may prescribe.
Education Law section 305(1) designates the Commissioner as chief executive officer of the State system of education and the Regents, and authorizes the Commissioner to enforce laws relating to the educational system and to execute the Regents' educational policies. Section 305(2) authorizes the Commissioner to have general supervision over schools subject to the Education Law.
Education Law section 310 provides that an aggrieved party may appeal by petition to the Commissioner of Education in consequence of certain specified actions by school districts and school officials.
Education Law section 311 authorizes the Commissioner to regulate the practice of appeals to the Commissioner brought pursuant to Education Law section 310.
Education Law section 3202(1) specifies the school district of residence as the school district in which children residing in New York State are entitled to attend school without the payment of tuition. That section is intended to assure that each child residing within the State is able to attend school on a tuition-free basis in accordance with Article XI, section 1 of the New York State Constitution. Moreover, it is the policy of the Legislature, as expressed in Education Law section 3205(1) to require instruction for each child of compulsory school age within the State.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the authority conferred by the above statutes to regulate the practice and procedures to be followed in Education Law section appeals.
3. NEEDS AND BENEFITS:
The proposed rule is needed to clarify, update and prescribe Education Law section 310 appeal procedures and requirements, consistent with established practice. Specifically, the proposed rule will:
(1) clarify procedures for the submission of additional pleadings;
(2) clarify requirements for verification of pleadings by a corporation, limited liability company (LLC), limited liability partnership (LLP) or other business entity;
(3) clarify procedures for the service of a petition when the last day for service falls on a Saturday, Sunday or legal holiday and procedures for completion of service by private express delivery, and to provide a form for affidavit of service by private express delivery;
(4) add cross citations to section 276.1 if a stay is being requested, and to section 277.1 if removal of a school officer is sought;
(5) require in appeals involving student discipline, that the school district include with its answer the record of the disciplinary hearing prepared in accordance with Education Law section 3214;
(6) clarify that the commissioner, in his/her sole discretion, may excuse a failure to serve an answer within the time prescribed for good cause shown and that the reasons for such failure shall be set forth in the answer;
(7) clarify requirements for representation by an attorney of an individual party, a school district, and a corporation, LLC, LLP or other business entity;
(8) clarify that the Commissioner may, in his/her discretion, and at any stage of the proceedings, dismiss an untimely appeal;
(9) specify requirements and procedures for the consolidation of appeals;
(10) clarify service requirements for affidavits in opposition to an application for a stay order;
(11) provide that the Office of Counsel will notify parties with respect to a request for oral arguments, only in the event the request is granted;
(12) clarify requirements and procedures for seeking extensions of time to answer or reply;
(13) clarify procedures for submission of memoranda of law;
(14) clarify procedures for submission of additional affidavits, exhibits and other supporting papers;
(15) clarify procedures for the dismissal of appeals; and
(16) update or correct terminology, e-mail and regular mail addresses and telephone numbers, and delete obsolete, superceded provisions in 275.9, 275.11, 275.13, 275.14 and 276.4, relating to pleadings in appeals concerning pupils with handicapping conditions.
4. COSTS:
Cost to the State: None.
Costs to local government: None.
Cost to private regulated parties: None.
Cost to regulating agency for implementation and continued administration of this rule: None.
The proposed rule clarifies, updates and prescribes Education Law section 310 appeal procedures and requirements, consistent with established practice, and will not impose any additional costs on the State, local government, private regulated parties or the State Education Department.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment is necessary to clarify, update and prescribe Education Law section 310 appeal procedures and requirements, consistent with established practice. The proposed amendment will not impose any additional program, service, duty or responsibility on local governments.
6. PAPERWORK:
The proposed amendment is necessary to clarify, update and prescribe Education Law section 310 appeal procedures and requirements, consistent with established practice.
A party seeking to file an additional pleading shall submit an application to the Office of Counsel which shall state the reasons why such pleading is necessary and include a copy of the proposed pleading, together with proof of service upon all parties.
A party seeking to file affidavits, exhibits and other supporting papers shall submit an application to the Office of Counsel, which shall state the reasons why such affidavits, exhibits or other supporting papers are necessary and include a copy of the affidavit, exhibit or other supporting papers, together with proof of service upon all parties.
In appeals involving student discipline, it shall be the responsibility of the board of education, board of trustees or sole trustee to include with its answer the record of the disciplinary hearing.
A party involved in a consolidation of appeals shall serve and file pleadings, affidavits, memoranda of law and other papers upon such terms as the Commissioner may specify.
7. DUPLICATION:
The proposed amendment does not duplicate, overlap or conflict with State and Federal rules or requirements.
8. ALTERNATIVES:
There were no significant alternatives and none were considered.
9. FEDERAL STANDARDS:
The proposed amendment does not exceed any minimum standards of the Federal government for the same or similar subject areas.
10. COMPLIANCE SCHEDULE:
It is anticipated that regulated parties will be able to achieve compliance with the provisions of the proposed amendment by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment relates to procedures for appeals that are brought pursuant to Education Law section 310, and does not apply to small businesses since they are not parties to such proceedings. The proposed amendment will not impose any additional reporting, recordkeeping or other compliance requirements on small businesses, nor will it have any adverse economic impact on small businesses. Because it is evident from the nature of the rule that it does not apply to small businesses, no further steps were needed to ascertain that fact and none were taken. Therefore, a regulatory flexibility analysis is not required, and one has not been prepared.
Local Governments:
EFFECT OF PROPOSED RULE:
The proposed amendment is applicable to all public school districts and boards of cooperative educational services (BOCES) in the State.
COMPLIANCE REQUIREMENTS:
The proposed rule is needed to clarify, update and prescribe Education Law section 310 appeal procedures and requirements, consistent with established practice, and will not impose any additional compliance requirements. Specifically, the proposed rule will:
(1) clarify procedures for the submission of additional pleadings;
(2) clarify requirements for verification of pleadings by a corporation, limited liability company (LLC), limited liability partnership (LLP) or other business entity;
(3) clarify procedures for the service of a petition when the last day for service falls on a Saturday, Sunday or legal holiday and procedures for completion of service by private express delivery, and to provide a form for affidavit of service by private express delivery;
(4) add cross citations to section 276.1 if a stay is being requested, and to section 277.1 if removal of a school officer is sought;
(5) require in appeals involving student discipline, that the school district include with its answer the record of the disciplinary hearing prepared in accordance with Education Law section 3214;
(6) clarify that the commissioner, in his/her sole discretion, may excuse a failure to serve an answer within the time prescribed for good cause shown and that the reasons for such failure shall be set forth in the answer;
(7) clarify requirements for representation by an attorney of an individual party, a school district, and a corporation, LLC, LLP or other business entity;
(8) clarify that the Commissioner may, in his/her discretion, and at any stage of the proceedings, dismiss an untimely appeal;
(9) specify requirements and procedures for the consolidation of appeals;
(10) clarify service requirements for affidavits in opposition to an application for a stay order;
(11) provide that the Office of Counsel will notify parties with respect to a request for oral arguments, only in the event the request is granted;
(12) clarify requirements and procedures for seeking extensions of time to answer or reply;
(13) clarify procedures for submission of memoranda of law;
(14) clarify procedures for submission of additional affidavits, exhibits and other supporting papers;
(15) clarify procedures for the dismissal of appeals; and
(16) update or correct terminology, e-mail and regular mail addresses and telephone numbers, and delete obsolete, superceded provisions in 275.9, 275.11, 275.13, 275.14 and 276.4, relating to pleadings in appeals concerning pupils with handicapping conditions.
A party seeking to file an additional pleading shall submit an application to the Office of Counsel which shall state the reasons why such pleading is necessary and include a copy of the proposed pleading, together with proof of service upon all parties.
A party seeking to file affidavits, exhibits and other supporting papers shall submit an application to the Office of Counsel, which shall state the reasons why such affidavits, exhibits or other supporting papers are necessary and include a copy of the affidavit, exhibit or other supporting papers, together with proof of service upon all parties.
In appeals involving student discipline, it shall be the responsibility of the board of education, board of trustees or sole trustee to include with its answer the record of the disciplinary hearing.
A party involved in a consolidation of appeals shall serve and file pleadings, affidavits, memoranda of law and other papers upon such terms as the Commissioner may specify.
PROFESSIONAL SERVICES:
The proposed amendment will not increase the level of professional services needed by school districts or BOCES to comply with its requirements.
COMPLIANCE COSTS:
The proposed rule is needed to clarify, update and prescribe Education Law section 310 appeal procedures and requirements, consistent with established practice, and will not impose any additional costs on school districts or BOCES.
ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any additional technological requirements on school districts or BOCES. Economic feasibility is addressed under the compliance costs section above.
MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to clarify, update and prescribe Education Law section 310 appeal procedures and requirements, consistent with established practice, and will not impose any additional compliance requirements on school districts and BOCES.
The proposed amendment modifies the procedures concerning appeals that are brought pursuant to Education Law section 310. The proposed amendment does not impose any additional reporting, recordkeeping or other compliance requirements on local governments beyond those imposed by Federal and State statutes.
LOCAL GOVERNMENT PARTICIPATION:
Comments on the proposed amendment were solicited from school districts and BOCES through the offices of the district superintendents of each supervisory district in the State. A draft of the proposed rule was sent, for review and comment, to the New York School Boards Association, New York State United Teachers, New York City Department of Education, New York State Council of School Superintendents, New York State Association of School Attorneys and the Department's Office of State Review.
Rural Area Flexibility Analysis
TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed amendment applies to all school districts in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less. At present 2 school districts and 11 BOCES serve rural areas.
REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed rule is needed to clarify, update and prescribe Education Law section 310 appeal procedures and requirements, consistent with established practice, and will not impose any additional compliance requirements. Specifically, the proposed rule will:
(1) clarify procedures for the submission of additional pleadings;
(2) clarify requirements for verification of pleadings by a corporation, limited liability company (LLC), limited liability partnership (LLP) or other business entity;
(3) clarify procedures for the service of a petition when the last day for service falls on a Saturday, Sunday or legal holiday and procedures for completion of service by private express delivery, and to provide a form for affidavit of service by private express delivery;
(4) add cross citations to section 276.1 if a stay is being requested, and to section 277.1 if removal of a school officer is sought;
(5) require in appeals involving student discipline, that the school district include with its answer the record of the disciplinary hearing prepared in accordance with Education Law section 3214;
(6) clarify that the commissioner, in his/her sole discretion, may excuse a failure to serve an answer within the time prescribed for good cause shown and that the reasons for such failure shall be set forth in the answer;
(7) clarify requirements for representation by an attorney of an individual party, a school district, and a corporation, LLC, LLP or other business entity;
(8) clarify that the Commissioner may, in his/her discretion, and at any stage of the proceedings, dismiss an untimely appeal;
(9) specify requirements and procedures for the consolidation of appeals;
(10) clarify service requirements for affidavits in opposition to an application for a stay order;
(11) provide that the Office of Counsel will notify parties with respect to a request for oral arguments, only in the event the request is granted;
(12) clarify requirements and procedures for seeking extensions of time to answer or reply;
(13) clarify procedures for submission of memoranda of law;
(14) clarify procedures for submission of additional affidavits, exhibits and other supporting papers;
(15) clarify procedures for the dismissal of appeals; and
(16) update or correct terminology, e-mail and regular mail addresses and telephone numbers, and delete obsolete, superceded provisions in 275.9, 275.11, 275.13, 275.14 and 276.4, relating to pleadings in appeals concerning pupils with handicapping conditions.
A party seeking to file an additional pleading shall submit an application to the Office of Counsel which shall state the reasons why such pleading is necessary and include a copy of the proposed pleading, together with proof of service upon all parties.
A party seeking to file affidavits, exhibits and other supporting papers shall submit an application to the Office of Counsel, which shall state the reasons why such affidavits, exhibits or other supporting papers are necessary and include a copy of the affidavit, exhibit or other supporting papers, together with proof of service upon all parties.
In appeals involving student discipline, it shall be the responsibility of the board of education, board of trustees or sole trustee to include with its answer the record of the disciplinary hearing.
A party involved in a consolidation of appeals shall serve and file pleadings, affidavits, memoranda of law and other papers upon such terms as the Commissioner may specify.
The proposed amendment will not increase the level of professional services needed by school districts or BOCES to comply with its requirements.
COMPLIANCE COSTS:
The proposed rule is needed to clarify, update and prescribe Education Law section 310 appeal procedures and requirements, consistent with established practice, and will not impose any additional costs on school districts or BOCES.
MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to clarify, update and prescribe Education Law section 310 appeal procedures and requirements, consistent with established practice, and will not impose any additional compliance requirements on school districts and BOCES.
The proposed amendment modifies the procedures concerning appeals that are brought pursuant to Education Law section 310. The proposed amendment does not impose any additional reporting, recordkeeping or other compliance requirements on local governments beyond those imposed by Federal and State statutes.
The proposed amendment does not impose any additional reporting, recordkeeping or other compliance requirements on rural areas. Because these requirements are applicable State-wide, it was not possible to prescribe lesser requirements for rural areas.
RURAL AREA PARTICIPATION:
Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts and BOCES located in rural areas. A draft of the proposed rule was sent, for review and comment, to the New York School Boards Association, New York State United Teachers, New York City Department of Education, New York State Council of School Superintendents, New York State Association of School Attorneys and the Department's Office of State Review.
Job Impact Statement
The proposed amendment relates to Education Law section 310 appeal procedures and will not have a substantial adverse impact on jobs and employment opportunities. Because it is evident from the nature of the rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
