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Decision No. 12,874

Appeal of GEORGE PALERMO from action of the Board of Education of the City School District of the City of New York relating to removal from the Community Board of Community District 9.

Decision No. 12,874

(January 8, 1993)

Hon. O. Peter Sherwood, Esq., Corporation Counsel, attorney for respondent, Geoffrey A.

Mort, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the determination of the Board of Education of the City School District of the City of New York ("respondent") affirming the order of the Chancellor removing petitioner from the Community Board of Community District 9 (the "Community School Board"). The appeal is dismissed.

On April 22, 1991, petitioner was arrested and charged with menacing and criminal possession of a deadly weapon. The charges stemmed from petitioner's confrontation with school district administrative staff earlier that day in the Community School District office. On April 23, 1991, the Chancellor suspended petitioner from the Community School Board pending resolution of the criminal charges. At petitioner's request, by letter dated May 3, 1991, counsel for the Community School Board appealed on petitioner's behalf his suspension to the City board of education. Although the weapons charge was eventually dropped, on September 19, 1991, petitioner entered a guilty plea to a misdemeanor charge of menacing.

Following a conciliation meeting between the Chancellor and petitioner on September 25, 1991, the Chancellor issued an order removing petitioner as a member of the Community School Board. The Chancellor's decision was based on his determination that, in committing the crime of menacing, which involves intentionally placing another person in fear of imminent serious physical injury, petitioner violated both the law and his promise to faithfully discharge his duties as a board member. Petitioner appealed his removal to the Board of Education of the City of New York. The Chancellor's decision was upheld on January 10, 1992. Petitioner commenced this appeal on February 13, 1992.

Petitioner contends that the Chancellor wrongfully suspended him without attempting conciliation. Petitioner also challenges his removal because he was not given a written copy of the charges against him or a hearing. Petitioner further contends that the Chancellor's finding that petitioner's act of menacing rose to a level of misconduct involving a wilful violation of law and a violation of his oath of office was arbitrary and capricious.

Respondent contends that the Chancellor's suspension of petitioner without conciliation was proper because petitioner posed an immediate threat to the safety of school personnel. Respondent also contends that the Chancellor complied with Education Law '2590-l when he removed petitioner from the Community School Board without a hearing. Respondent further contends that the Chancellor's decision was neither arbitrary, capricious, nor contrary to law or sound educational policy.

Education Law '2590-l authorizes the Chancellor to suspend and remove members of a community school board. Section 2590-l provides in pertinent part:

If, in the judgment of the chancellor any community board fails to comply with any applicable provisions of law, by-laws, rules or regulations, directives and agreements, and after efforts at conciliation with such community board have failed, he may issue an order requiring the community board to cease its improper conduct or to take required action and consistent with the provisions of this article and the educational and operational policies of the city board, may enforce that order by the use of appropriate means, including: .... (b) suspension or removal of the community board or any member or members thereof.

Although the statute contemplates conciliation prior to suspension, where a member's actions take place in their entirety during a single school day without the possibility for conciliation before the suspension is imposed, the suspension will be upheld (Matter of Boards of Education of Community School Districts 25 and 26, 23 Ed Dept Rep 298). In this case, I find ample evidence to support the need for an immediate suspension, particularly where the nature of petitioner's misconduct required the Chancellor's prompt action to ensure the safety of school personnel. However, petitioner's suspension continued after the emergency for an inordinate period of time without an attempt at conciliation. Although conciliation would have been futile given the eventual outcome of the criminal charges, I find nevertheless, that the Chancellor should have afforded petitioner an opportunity for conciliation on the continuing suspension once the emergency abated. With regard to his ultimate removal, the record reflects that, before removing petitioner from the board, the Chancellor made efforts at conciliation.

With regard to petitioner's other claims, the Chancellor is not required by Education Law '2590-l to bring specific charges against a community school board member or to conduct a hearing prior to suspension or removal (School Board v Macchiarola, 99 Misc 2d 219 [1979]; Application of the Board of Education of the City School District of the City of New York, 28 Ed Dept Rep 451; Matter of Hicks, 15 id. 141). Before his removal, petitioner admitted that he violated the Penal Law when he pled guilty to the criminal charge of menacing school board personnel. In acting on petitioner's admitted failure to comply with the law, I also find that the Chancellor's attempt to effect conciliation afforded petitioner an opportunity for discussion of the charges prior to his removal.

Petitioner's contention that the Chancellor's decision was capricious because petitioner's act of menacing did not amount to a wilful violation of law or a violation of his oath of office is without merit. First, petitioner's reliance on cases brought under Education Law '306 -- where wilfulness is a required element when the Commissioner removes a board member -- is misplaced. The standard for removal of a board member by the City board does not require the Chancellor to prove wilfulness (Application of the Board of Education of the City School District of the City of New York, supra at 455). Simple noncompliance with "any applicable provisions of law, by-laws, rules or regulations, directives and agreements," after efforts at conciliation have failed, is sufficient grounds for removal of a board member under '2590-l. Here, petitioner pled guilty to the crime of menacing, which constitutes intentionally placing or attempting to place another person in fear of imminent serious physical injury. Moreover, in this case, the crime was committed on school property against school board personnel. A board member's intentional disruption of a school board meeting constitutes a violation of his duties and is ground for removal (Matter of Felicio, et al., 19 Ed Dept Rep 414). Similarly, petitioner's menacing of school board personnel, which is an even more egregious threat to school board operations, violates his oath of office. Based on the foregoing, I find the Chancellor's determination that petitioner's misconduct constituted a violation of both law and his oath of office neither arbitrary nor capricious.

It is well settled that the Commissioner of Education will not substitute his judgment for that of a board of education, absent a showing that the challenged decision is arbitrary or capricious, contrary to law or sound educational policy (Appeal of Coca, et al., 27 Ed Dept Rep 279; Matter of Boards of Education Community School Districts 25 and 26, supra; Matter of Parents Assns. JHS 202 and 210 and Int. Sch. 226, 20 id. 22). On the record before me, petitioner has failed to offer any compelling basis for me to substitute my judgment for that of respondent board of education.

THE APPEAL IS DISMISSED.

END OF FILE