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Decision No. 13,382

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Application of RICHARD L. BORGES for the removal of Susannah Quayle, Christine Humphreys, Russell Stewart, Dennis Keith, Rita Mack and Brad Alcott, as members of the Board of Education of the Waterville Central School District.

Decision No. 13,382

(March 23, 1995)

Ferrara, Fiorenza, Barrett & Reitz, P.C., attorneys for respondents, Susan T. Johns, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks the removal of five members of the Board of Education of the Waterville Central School District pursuant to Education Law '306. The application must be denied.

Petitioner, a resident of the Waterville Central School District, complains about several actions taken by respondents. They include failing to act on a petition presented to the board, using uncertified substitute teachers for more than 40 days during a school year, appointing the district's business official as treasurer and making unauthorized expenditures. Respondents deny those allegations.

Education Law '306 authorizes the Commissioner of Education to remove a member of a board of education for a willful violation or neglect of duty under the law (Education Law '306[1]; Application of Sabuda, et al., 31 Ed Dept Rep 461; Matter of Legatos, 23 id. 10). To be considered willful, respondents' actions must have been done intentionally and with a wrongful purpose (Appeal of Board of Cooperative Educational Services, et al., 32 Ed Dept Rep 519; Application of Griffin, 31 id. 221; Application of Gellatly, 30 id. 10). In an appeal before the Commissioner of Education, the petitioner has the burden to establish the facts upon which he seeks relief (8 NYCRR 275.10; Application of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284).

First, petitioner contends that respondents must be removed from office because they failed to respond to a petition demanding that the entire board resign. In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Sivak, 34 Ed Dept Rep 313; Appeal of Lemley, 33 id. 706; Appeal of Cauley, 33 id. 359). A board of education must comply with a petition to hold an election on a voter proposition on an issue which is within the power of the voters (Education Law ''2008[2] and 2021). However, a board is not required to submit to a demand for action that is not within the power of the voters (Education Law '2008[2][a]). A board of education is under no legal obligation to submit to a demand of community members in the form of a petition, such as the one presented herein. Accordingly, respondents have not acted improperly on this issue, and their failure to respond to the petition is not a basis to order their removal.

Petitioner also maintains that respondents must be removed from office because they permitted two uncertified teachers to substitute teach more than 40 days in a school year, in violation of 8 NYCRR 80.36(c)(3). Respondents concede that during the 1993-94 school year, two uncertified teachers were employed as substitutes for more than 40 days. However, as pointed out by respondents' attorneys, there is no evidence that the employment of those two individuals was known by the board or that there was any intent to willfully violate 8 NYCRR 80.36 when those teachers were employed. Absent such intent and knowledge, those actions do not provide a basis for respondents' removal. Moreover, the record indicates that respondents have taken action to prevent the situation from reoccurring.

Petitioner also asserts that respondents improperly approved pay raises for nonteaching staff for the 1994-95 school year while the district is operating under a contingency budget. One of the employees at issue is the superintendent. The record indicates that the superintendent's salary is governed by a contract between that individual and the district. A salary increase granted pursuant to a contract is a legal obligation and, therefore, an ordinary contingent expense (Formal Opinion of Counsel No. 213, 7 Ed Dept Rep 153, 154). Raises were also granted to the high school principal, the middle school principal and an assistant principal. Such positions are certified administrative positions relating to curriculum instruction or the instructional program. It is well established that a board of education is empowered pursuant to Education Law '2023 to expend funds necessary to pay the salaries for such positions without voter approval (Appeal of Blizzard, 34 Ed Dept Rep 268; Appeal of Aarseth, 32 id. 506; Matter of Moore, 18 id. 375). Raises were also granted to the district treasurer, clerk and tax collector. Pursuant to Education Law '2130, a board of education is specifically authorized to appoint a district treasurer, clerk and tax collector and set the salary for those positions, without voter approval (Appeal of Seerup, 33 Ed Dept Rep 585; Appeal of Parsons, 32 id. 444; Matter of Palillo, 6 id. 117). Since these expenses are specifically authorized by statute, they are contingent expenses (Formal Opinion of Counsel No. 213, supra). Other payments challenged by petitioner were not raises, but were instead payments to staff members for additionally assigned duties. Such payments are also permissible under an austerity budget (Appeal of Parsons, supra). Since all the contested payments of salary are proper, they do not constitute a basis for respondents' removal.

Petitioner also asserts that respondents should be removed from office for operating a breakfast program under a contingency budget. However, the breakfast program in question is operated by the Oneida-Madison Board of Cooperative Educational Services (BOCES), not the Waterville Central School District. The record indicates that the school district does not incur any expense in connection with the program. In fact, to operate the program, BOCES pays the district a rental fee for use of district facilities.

Petitioner further contends that respondents improperly expended funds for school bus repairs while operating under a contingency budget. The record indicates that the repairs were performed so that the bus would pass a Department of Transportation inspection and to prevent deterioration of the bus. As set forth in Formal Opinion of Counsel No. 213, supra, an expense is considered contingent if "... it is necessary to ... preserve property or assure the health and safety of the students or staff." The repairs questioned clearly were done to preserve the bus and to assure the safety of the students. Accordingly, that expense was proper under an austerity budget.

Petitioner also challenges an expense of $21.95, which he alleges was for refreshments at school board meetings. However, the record indicates that the expense was for food for election inspectors on days when special district elections were conducted. Such expenditures do not constitute grounds for respondents' removal.

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPLICATION IS DENIED.

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