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Decision No. 13,314

Application of EDWIN HAIGHT and FRANK McGINNIS for the removal of an unspecified member of the Board of Education of the Roxbury Central School District from his or her position as a member of the board of education.

Decision No. 13,314

(December 16, 1994)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Jeffrey D. Honeywell and John J. Toy, Jr., Esqs., of counsel

SOBOL, Commissioner.--Petitioners, residents of the Roxbury Central School District, seek an order pursuant to Education Law '306 removing an unidentified member of the Board of Education of the Roxbury Central School District ("respondent"). The application must be denied.

Although the allegations in the petition are unclear and difficult to understand, it appears that respondent appointed a special counsel to investigate findings of malfeasance and nonfeasance set forth in a report by the New York State Comptroller. The report prepared by the special counsel (known as the "Perelson-Bullis report") was delivered to respondent on or about April 13, 1994. Respondent voted to release to the public all of the report except schedule A. In response to Freedom of Information Law (FOIL) requests for the Perelson-Bullis report, respondent refused to release schedule A of the report. Respondent maintains that schedule A of the report is an "inter-agency memo" that is not required to be disclosed under FOIL.

By letter dated June 13, 1994, a group of district residents, calling themselves the Roxbury Taxpayers Alliance, noted that Philip Zorda, a candidate for election to the board, claimed to have seen the entire Perelson-Bullis report, including schedule A. The letter further requested that the board member who had disclosed the entire report to Mr. Zorda be forced to resign. At a board meeting held on June 29, 1994, Mr. Zorda stated that he had never seen the Perelson-Bullis report but admitted that he had previously claimed to have seen it.

Before addressing the merits of this appeal, it is necessary to review a procedural issue. Petitioners have failed to name the individual members of the Board of Education of the Roxbury Central School District even though petitioners seek the removal from office of one or more of those individuals. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner must be joined as a party (Appeal of Aarseth, 32 Ed Dept Rep 626; Appeal of Basile, 32 id. 330; Appeal of Osterman, 30 id. 290). Since a ruling in petitioners' favor would adversely affect one or more of the individual members of the board, the petition must be dismissed for non-joinder of a necessary party.

Turning to the merits of the appeal, Education Law '306(1) provides that the Commissioner of Education may remove from office a member of a board of education when

...it shall be proved to his satisfaction that any...member of a board of education,... 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,...

In an appeal to the Commissioner, the petitioners bear the burden of demonstrating a clear legal right to the relief requested (Appeal of Nanni, Weston and Snyder, 23 Ed Dept Rep 444). On the record before me, petitioners have failed to sustain that burden.

Petitioners seem to claim that some unspecified member of respondent board violated General Municipal Law '805-a(1)(b) when he or she disclosed confidential information to Philip Zorda by giving him the entire Perelson-Bullis report, including schedule A. General Municipal Law '805-1(1)(b) provides that a school board member may not disclose confidential information acquired in the performance of official duties or use such information to further his or her personal interests. While a board member's disclosure of confidential information would violate General Municipal Law '805-a(1)(b) (Appeal of Henning and Rohrer, 33 Ed Dept Rep 232), there is no evidence, other than petitioners' conclusory assertions, that a board member revealed the information in question to Mr. Zorda. Moreover, in sworn affidavits filed with my Office of Counsel, all board members state that they never shared the Perelson-Bullis report with Mr. Zorda, and Mr. Zorda attests that no board member has shown him the report. Accordingly, there is no basis in the record for finding that any board member violated General Municipal Law '805-a(1)(b).

Petitioners also contend that some unidentified board member improperly disclosed the contents of the August 5, 1993 letter from the then board president to the superintendent. The content of the letter involved the cost of legal fees to the district. The cost of legal services to the district, however, is not confidential information, but rather a matter of public interest. Consequently, even if a board member had revealed such information, such action would not warrant removal from office.

THE APPLICATION IS DENIED.

END OF FILE