Decision No. 13,506

(November 6, 1995)

MILLS, Commissioner.--Petitioner seeks the removal of the superintendent and three members of the Board of Education of the Newark Valley Central School District ("the district") pursuant to Education Law '306. The application must be denied.

On May 11, 1994 voters in the district approved two propositions. The first proposition, authorizing the purchase of a school bus, passed by a vote of 782 to 248. The second proposition, establishing a capital reserve fund, was approved by a vote of 694 to 296.

Petitioner, a resident of the Newark Valley Central School District, complains about several actions taken by respondents. Petitioner alleges that respondents used district resources and personnel to develop a selective telephone list and videotape as part of a marketing strategy designed to improperly encourage district voters to support the above described propositions in violation of Phillips v. Maurer, 67 NY2d 672. Petitioner also alleges that respondents failed to adequately maintain the district's facilities. Respondents deny the allegations.

Before reaching the merits, I will address respondents' procedural objections. Petitioner offers new allegations and exhibits in his reply. However, the purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR 275.3, 275.14), not to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition initially (Appeal of Jarosz, 34 Ed Dept Rep 600; Appeal of Walsh, et al., 34 id. 544; Appeal of Whitaker, 33 Ed Dept Rep 59). Petitioner submits two replies containing affidavits which could have been attached to the original petition. The affidavits and replies merely support allegations in the petition. Accordingly, I will not consider the new material in petitioner's reply.

Respondents also assert that the appeal is untimely, since the petition was served on May 22, 1995 and the propositions in controversy were passed on May 11, 1994. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition (8 NYCRR 275.16). Petitioner explains that he did not bring a timely appeal because he was waiting for responses from Governor Pataki to his January 26, 1995 complaints. On February 8 and 15, 1995 the State Education Department sent petitioner two responses on behalf of Governor Pataki. Petitioner served his petition more than one year after the passage of the proposition, therefore rendering it untimely. Letters to Governor Pataki do not, as is implied by petitioner, toll the statute of limitations. However, even if these letters did toll the statute, petitioner still served the petition more than 30 days after receiving responses, thus rendering the petition untimely. Accordingly, the appeal is dismissed as untimely.

The appeal must also be dismissed on the merits. 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 Borges, 34 Ed Dept Rep 459; Application of Sabuda, et al, 31 id. 461). To be considered willful, respondents' actions must have been intentional and with a wrongful purpose (Application of Sabuda, supra; Matter of Board of Cooperative Educational Services, et al., 32 Ed Dept Rep 519). In an appeal before the Commissioner of Education, petitioner has the burden to establish the facts upon which he seeks relief (8 NYCRR 275.10; Application of Sabuda, supra; Application of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284).

Petitioner contends respondents' use of district resources and personnel to encourage voters to support two propositions violated Phillips v. Maurer, supra. In Phillips the Court of Appeals held that school district funds may not be used to exhort the electorate to support a particular proposition or candidates. However, petitioner's allegations of Phillips v. Maurer violations are conclusory in nature and unsupported by the record. Rather, the record shows that the telephone list to which petitioner objects was prepared by a committee of concerned citizens using public information off school grounds and without the use of any district resources or funding. Although some individuals employed by the district apparently served on this citizens committee, all meetings occurred off school premises and after school hours. The record further reflects that although district personnel developed the informational videotape during school hours, it was never distributed. Moreover, the videotape discusses the purpose of the capital reserve fund and tours building facilities to show the viewer the state of disrepair. Thus, the video is merely informational and therefore not violative of the standards established in Phillips v. Maurer, supra.

Petitioner's allegation that respondents neglected the physical plant is also unsupported by the record. The record reflects that damage to the roof of the district's middle school was unanticipated and resulted from a record snow fall in the winter of 1993-94. Likewise, the collapse of the septic tank at the middle school resulted from a heavy delivery truck backing over the in-ground tank.

In view of the foregoing, I find petitioner's allegations insufficient to justify removing respondents from office.

Education Law '3811 requires school districts to pay for the legal expenses incurred by board members in proceedings arising out of their official duties. To invoke '3811, a board member must notify the board of education, in writing, of the commencement of a proceeding, within five days after service of process. Within ten days following receipt of that notice, the board must designate and appoint legal counsel to represent the board member, and the court or Commissioner of Education, as appropriate, must certify that the board member appeared to have acted in good faith with respect to the exercise of his or her powers or the performance of his or her duties under the Education Law (Education Law '3811; Application of Danin, 32 Ed Dept Rep 20). Pursuant to Education Law '3811, respondents request that I issue a certificate of good faith. In light of the fact that this application is denied, respondents are entitled to a certificate of good faith.

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

THE APPLICATION IS DENIED.

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