Decision No. 12,634

(January 13, 1992)

Sayles, Evans, Brayton, Palmer, and Tifft, Esqs., attorneys for respondents, James F. Young, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Watkins Glen Central School District, seeks an order pursuant to Education Law '306 removing respondent board member, Dr. Thomas (Jack) Love, from office for willful neglect of duty, and appeals the decision of respondent board of education refusing to remove him from office pursuant to Education Law '2109. The application must be denied, and the appeal dismissed. Petitioner contends that respondent Love's four absences from board meetings during the 1989-90 school year and seven absences from board meetings during the 1990-91 school year represent a willful neglect of duty which warrants removal from office. Petitioner is requesting Dr. Jack Love's removal from office pursuant to Education Law '306(1), which states in pertinent part:

Whenever it shall be proved to his satisfaction that any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer . . . has been guilty of any wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in state funds, or wilfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education, said commissioner, after a hearing at which the school officer shall have the right of representation by counsel, may, by an order under his hand and seal, which order shall be recorded in his office, remove such officer from his office.

Petitioner is appealing respondent board's refusal to remove Dr. Jack Love from office pursuant to Education Law '2109, which provides:

A trustee of a common school or union free school district who publicly declares that he will not accept or serve in the office of trustee, or refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse thereof to the other trustees vacates his office by refusal to serve. Respondent Love has a long history of public service to the Watkins Glen Central School District. He served on the board of education between 1948 and 1966, serving as president of the board between 1958 and 1966. In the spring of 1988, four members of the board of education asked respondent board member if he would accept an appointment to a vacancy on the board. He agreed and was appointed to the board in the spring of 1988. He was elected president of the board in July 1988 and served in that capacity until June 30, 1990. In the spring of 1990 and again in January 1991, respondent Love advised the board of education that he planned to be in Florida during February and March 1991. Dr. Jack Love is 70 years old and is currently contemplating retirement from his work as a veterinarian. Upon advising the board of his plans, respondent Love offered to resign as a board member if the board believed his absences would impede his effective service on the board. The board did not want respondent Love to resign and felt that his vacation plans could be accommodated. Respondent Love was absent from seven meetings of the board of education in the 1990-91 school year because of the Florida vacation. Four were regular board meetings on February 12, February 26, March 12, and March 26, 1991; and three were special meetings of the board on January 29, March 5, and March 17, 1991. At the board's executive session on April 23, 1991, petitioner asked the board to remove Dr. Jack Love for willful neglect of duty based on his absences in the 1990-91 school year. Respondent board rejected petitioner's request. On May 13, 1991, petitioner brought this action to appeal the decision of respondent board and to request removal of Dr. Jack Love. Petitioner seeks removal of respondent board member from office for neglect of duty due to the seven specified absences in 1990-91 and four unspecified absences during the previous school year, 1989-90.

As a threshold matter, petitioner contends that respondents' answer should be rejected because of a number of alleged procedural errors. According to petitioner, the answer was not verified as required by 8 NYCRR '275.5, the oaths in the answer's affidavit of verification and in the accompanying affidavit of respondent Love were not notarized as required by 8 NYCRR '275.7, and the answer and accompanying affidavits were not endorsed with the name and address of the attorney handling the matter, as required by 8 NYCRR '275.4. I find that there is no basis to reject respondents' answer. Section 275.5 of the Regulations of the Commissioner of Education requires that the answer be verified "by any person who is familiar with the facts underlying the appeal." Respondents' answer is verified properly by the superintendent of schools of respondent school district, who is a person familiar with the facts underlying the appeal. The answer's affidavit of verification and the affidavit of respondent board member are notarized properly before a person authorized to administer oaths within the State and endorsed properly with the name and address of the attorney handling the case, as required by 8 NYCRR '275.7 and '275.4, respectively.

Respondents contend that the portion of the application that requests respondent board member's removal for absences that occurred in the 1989-90 school year should be dismissed as untimely pursuant to section 275.16 of the Commissioner's Regulations, which requires that an appeal be commenced within thirty days from the making of the decision or the performance of the act complained of. This appeal was instituted on May 13, 1991, more than ten months after the close of the 1989-90 school year. Therefore, it is clear that this appeal could not have been instituted within 30 days of the four absences in the 1989-90 school year. Petitioner provides no explanation for failing to file an application to remove respondent board member within the statutory period. Consequently, that portion of the application that requests respondent board member's removal from office based on his absences in the 1989-90 school year is dismissed as untimely.

A member of a board of education may be removed from office pursuant to Education Law '306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Northup, 25 Ed Dept Rep 161, Education Law '306[1]). To be considered willful, such acts must have been intentionally done with a wrongful purpose to disregard a lawful duty or violate a legal requirement (People v. Skinner, 37 App Div 44 aff'd 159 NY 162 [1899]; Application of Gellatly, 30 Ed Dept Rep 10). In an appeal to the Commissioner, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Application of the Board of Education of the Cornwall Central School District, 25 Ed Dept Rep 250). Petitioner has failed to establish that the actions of respondent board member constituted a willful violation or neglect of duty requiring his removal from office. There has been no showing that respondent Love intentionally and with wrongful purpose acted to disregard a lawful duty. Rather, he informed the board that he planned to take a vacation well in advance of the vacation period and offered to resign from the board if his absence was problematic. The board of education felt that the vacation schedule could be accommodated. Removal of respondent board member under Education Law '306 is therefore not warranted. Education Law '2109 authorizes a board of education to remove a board member only when such member has not given a good and valid excuse for his absences (Matter of Pupparo, 11 Ed Dept Rep 74). The board of education must initially determine whether or not the excuses are valid (Matter of McLaughlin, 19 Ed Dept Rep 584). In this case, respondent Love has presented evidence that the absences were due to an extended stay in Florida. Respondent board member had the approval of the other board members prior to taking the vacation, and the board was satisfied with his excuse. Where the board of education has approved the absences of a board member, I generally will not substitute my judgment for that of the board (Matter of Ratner, 11 Ed Dept Rep 305). I do not find that the board of education acted improperly when it refused to remove respondent board member from office pursuant to Education Law '2109, especially in light of respondent Love's many years of distinguished service to the board. Respondent Love asks that I issue a certification in accordance with the provisions of Education Law '3811. That statute requires that before a school district may pay for a board member's legal representation, a court or the Commissioner of Education must certify that the board member appeared to have acted in good faith with respect to the exercise of his powers or the performance of his duties in relation to a proceeding brought against him before the court or the Commissioner. It appears from the record that respondent Love requested representation in a timely manner.

Petitioner contends that the certification should not be granted because this matter does not concern the performance of lawful duties as a board member. However, the grounds upon which removal is sought relate specifically to the alleged failure of respondent Love to perform his duties as required by law, and certification is appropriate provided that he acted in good faith (Matter of McLaughlin, supra). In accordance with the provisions of Education Law '3811, I certify that respondent board member acted in good faith with respect to the performance of his duties as related to this proceeding.

THE APPLICATION IS DENIED, AND THE APPEAL IS DISMISSED.

END OF FILE

---