Decision No. 13,396

(April 6, 1995)

Albrecht, Maguire, Heffern & Gregg, P.C., attorneys for petitioner, John M. Curran, Esq.,

of counsel

Robert M. Murphy, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, a trustee of the Board of Education of the Lackawanna City School District, seeks an order pursuant to Education Law '306 removing fellow trustee Edward V. Sabuda ("respondent") from the board. The application must be granted.

On February 23, 1994, at a regularly scheduled meeting of the Board of Education of the Lackawanna City School District ("the board"), respondent threatened to slap a fellow board member, Kevin Reed, during an argument between the two trustees. The argument apparently erupted because Mr. Reed presented a resolution for the board's consideration concerning special education funding. Mr. Reed apparently introduced the resolution to bring the school district's special education program, which was the subject of a federal class action suit, into compliance with state and federal law. When respondent objected to the resolution, a loud argument ensued, during which Mr. Reed accused respondent of purposefully refusing to address the special education issue in order to embarrass the school superintendent, Nellie King. While it is in dispute whether respondent subsequently carried out his threat to slap Mr. Reed, there is no doubt that, after a physical altercation initiated and pursued solely by respondent, Mr. Reed was knocked off his chair into Superintendent King, and both fell to the floor.

Subsequently, Mr. Reed filed a charge of assault in the 3rd degree in the City of Lackawanna Police Court, alleging a violation of Section 120.00(1) of the Penal Law (Class A Misdemeanor). The matter was eventually adjourned in contemplation of dismissal (See Criminal Procedure Law '170.55). The board also retained an independent law firm to investigate and report on the incident. However, a majority of the board subsequently dismissed the law firm and canceled the investigation before it was completed.

By Order to Show Cause issued November 16, 1994, I set a hearing date of December 20, 1994 to hear petitioner's charges and determine whether respondent should be removed from office. Due to respondent's inability to obtain counsel, the hearing was postponed until January 31, 1995. On that date, both parties appeared, were represented by counsel and presented documentary evidence and witness testimony.

In the petition before me, petitioner alleges that respondent's actions are inappropriate and require removal. Respondent contends that the allegations in the petition are insufficient to support removal and that the petition is improper, since an investigation is being conducted by the board. As a procedural matter, respondent contends that the petition is untimely. Respondent also asserts that by commencing this appeal, petitioner is not acting under the authority of the board of education.

Before reaching the merits, I will address respondent's procedural arguments. Respondent claims the petition is untimely because it was served 30 days after the date of the altercation. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16; Appeal of Johnson, 33 Ed Dept Rep 183; Appeal of Sima-Eichler, 31 id. 550). The incident forming the basis for this appeal occurred on February 23, 1994, and the petition was served on March 23, 1994. It contained a procedural defect and was returned to petitioner by my Office of Counsel. However, once the defect was corrected, service was determined to have commenced on the original date (Matter of Ferraro, 24 Ed Dept Rep 275). Therefore, the petition will not be dismissed as untimely.

Respondent also contends that this proceeding should be dismissed because petitioner has not been authorized by the board of education to bring this appeal. However, nothing in the materials submitted by petitioner represents that he is acting with the authority of the board of education. Moreover, Commissioner's regulation 8 NYCRR '277 permits a petitioner in his individual capacity to apply for the removal of a member of the board of education. Accordingly, respondent's second procedural objection is without merit.

Respondent further contends that because the board commenced an investigation into this matter, petitioner's application for removal is improper. I note, however, that the board subsequently terminated its investigation before reaching a conclusion. In any event, petitioner's application for removal is not precluded by respondent's initial investigation -- even if completed. Accordingly, the petition is properly before me.

With respect to the merits, Education Law '306(1) provides in pertinent part:

A wilful violation or neglect of duty will be found where "a purpose or intent to disregard a lawful duty or to violate a legal requirement" exists (Matter of Felicio, et al., 19 Ed Dept Rep 414; Matter of Winograd, et al., 17 id. 213; Matter of Trigilio and Iannotta, 14 id. 385; Matter of Warner, 2 St Dept Rep 616). School board members are local officials who take an oath of office to exercise their duties. School boards have the duty and authority to adopt policies, rules and bylaws to discharge their duties, which include educational standards, budget matters, management issues and health and safety rules that secure the best educational results for students in their charge. To that end, a board member has a duty to proceed with constructive discussions aimed at achieving the best possible governance of the school district. Moreover, a board member must act consistent with the Penal Law.

At the removal hearing, petitioner presented four witnesses, three of whom testified convincingly that respondent slapped Mr. Reed and knocked him to the ground. Those witnesses were petitioner, Mr. Reed and Mr. Derens, the school attorney. Mr. Derens further testified that respondent's and Mr. Reed's legs were intertwined after Mr. Reed fell to the floor and that he saw respondent repeatedly kick Mr. Reed (Transcript p. 35-38). Mr. Reed corroborated this testimony, and added that the resulting injury to his leg caused him to miss work. Another of petitioner's witnesses, superintendent King, testified that Mr. Reed was knocked against her and caused her to fall to the ground. Moreover, respondent himself admits that he pushed Mr. Reed to the ground after threatening to slap him, but denies actually slapping or kicking Mr. Reed (Transcript, p. 260; p. 264). Respondent produced five witnesses who testified that he did not slap Mr. Reed, although two admitted that respondent made physical contact with Mr. Reed that resulted in his falling to the floor. On balance, I find the testimony of the witnesses on behalf of petitioner more persuasive than the testimony of respondent's witnesses. Indeed, cross-examination of respondent's witnesses revealed evidence of bias that undermined their credibility. For example, several had personal reasons for testifying on respondent's behalf, including their preexisting relationships with respondent, and animosity towards the district and petitioner. Mr. Zajak, who says he saw no physical contact between respondent and Mr. Reed, admitted that he was a personal friend of respondent. Ms. Kingsley, a teacher in the district, admitted that she had been assaulted by a student in April 1994 and that, in her view, Superintendent King -- who Ms. Kingsley perceives to be aligned with petitioner -- had not sufficiently disciplined the student involved. Moreover, Mrs. Chmiel, a fellow trustee, conceded that she was upset that petitioner voted against her granddaughter, a teacher in the district, in a tenure matter. Ms. Murphy admitted that as an officer with the teachers' union, she had been strongly opposed to the special education resolution introduced by Mr. Reed. Conversely, the credibility of petitioner's witnesses was never seriously called into question. In any event, two of respondent's own witnesses also admitted that respondent either pushed or pulled Mr. Reed to the floor. And, despite some conflict in testimony, it was conclusively established that at the February meeting of the board, respondent twice threatened to hit Mr. Reed, sprung up from his chair, strode aggressively toward Mr. Reed and made offensive physical contact that knocked Mr. Reed off his chair, into superintendent King and onto the floor.

At the removal hearing, respondent attempted to justify this conduct by asserting that Mr. Reed "improperly" introduced his resolution on special education funding. Respondent's counsel tried to elicit testimony that at the regularly scheduled work session prior to the board meeting, the proposed resolution was discussed but specifically not approved for inclusion on the final agenda for February 23. Respondent's counsel asserted that Mr. Reed's attempts to nevertheless introduce the resolution at the board meeting were deliberately intended to provoke respondent. Respondent's counsel also asserted that Mr. Reed's statement that respondent was "trying to embarrass" the superintendent was intended to provoke respondent. Likewise, respondent's counsel made much of the fact that after respondent threatened to slap Mr. Reed, Mr. Reed supposedly stated words to the effect of "make my day". Each of these facts, even if true, is of little import; while respondent may certainly object to Mr. Reed's introduction of a particular resolution, no objection, no matter how sincerely felt, can possibly justify respondent's physical assault on Mr. Reed.

Moreover, even if the special education resolution was not included in the anticipated board meeting agenda, Mr. Reed had the right to introduce the resolution as new business at the meeting, especially in view of his legitimate concern about the pending federal class action litigation and the board's need to timely comply with recent rulings of a federal arbitrator.

The record shows that respondent's use of force against Mr. Reed disrupted the February board meeting, certainly bringing to an abrupt end any discussion of board business, including special education issues. Thus, respondent breached his duty to engage in constructive discussion to make policy for the district, and in fact, interfered with the ability of the board to function. Moreover, respondent's actions were highly unprofessional and unbecoming a school board president and member. Respondent has a responsibility as a board member to comport himself properly and set an example for the student body that illustrates that disputes can be resolved without resort to violence.

Accordingly, I find respondent guilty of a wilful violation and neglect of duty. Therefore, pursuant to Education Law '306, I conclude that respondent should be removed from office as a member of the board of education (SeeMatter of O'Neil, 71 Misc. 469).

THE APPLICATION IS SUSTAINED, and

IT IS ORDERED that respondent EDWARD V. SABUDA be, and he hereby is, removed from the office of member of the Board of Education of the City School District of the City of Lackawanna.

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