Decision No. 13,520

(November 20, 1995)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondents, Jacob S. Feldman and James H. Pyun, Esqs., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of six members of the Board of Education of the Lynbrook Union Free School District and two other school district officers ("respondents"). The application must be denied.

Petitioner claims that respondents have retained unappropriated surplus funds in violation of Real Property Tax Law '1318 ("RPTL"). Petitioner alleges that this practice occurred in the 1991-92, 1992-93, 1993-94 and 1994-95 school years. Under RPTL '1318, at the conclusion of each fiscal year, a board of education must apply any unexpended surplus funds to reduce its upcoming tax levy for the current school year. "Surplus funds" is defined as "any operating funds in excess of 2% of the current school year budget, and shall not include funds properly retained under other sections of law." Accordingly, at the end of each school year, a board of education may not retain more than 2% of its surplus funds for expenditures the following year, and must use the remaining surplus funds to offset its upcoming tax levy. The record in this case indicates that the district retained surplus funds in excess of amounts permitted by RPTL '1318 in prior years.

Petitioner asserts that because respondent board members were responsible for the excess surplus funds and knowingly violated the RPTL, they should be removed from office under Education Law '306. Petitioner also seeks the removal of the superintendent of schools and the assistant superintendent for business because they allegedly recommended that the district retain unexpended surplus funds in excess of that authorized by statute. Petitioner requests a return of all surplus funds to the taxpayers to reduce the tax levy for the 1995-96 school year. Petitioner seeks withholding of the district's State aid until respondent is in compliance with RPTL '1318. Petitioner also seeks to void the employment contracts of the superintendent of schools and assistant superintendent for business and to bar them from any future employment by the district. Finally, petitioner requests that I assume control of the district until new members are elected to the board of education and a new superintendent of schools is hired.

Respondents contend that the petitions are untimely with respect to the 1991-92, 1992-93, 1993-94 and 1994-95 school years. Respondents also contend that any claim relating to the 1995-96 fiscal year is moot since the district has taken steps to reduce the unappropriated fund balance to 2% of the budget for the 1995-96 school year. Respondents further claim that the RPTL's limitation on surplus funds to 2% of the current year's budget is insufficient given several outstanding legal claims for which the district may be liable. Respondents also argue that the petition fails to provide proper notice to respondents under 8 NYCRR 277.1(b).

Before reaching the merits, I will address respondents' procedural arguments. Section 275.16 of the Commissioner's Regulations requires that an appeal to the Commissioner of Education be commenced within 30 days from the making of the decision or the performance of the act complained of. This application was commenced on May 10, 1995, more than 30 days after the close of the district's 1991-92, 1992-93 and 1993-94 fiscal years. Consequently, those portions of the application that relate to respondents' fiscal practices in those years are untimely. Petitioner's claim with respect to the 1994-95 fiscal year, however, is timely because petitioner brought the application within that fiscal year.

Respondents also raise a procedural objection to the notice requirement in the petition since it does not comply with 8 NYCRR 277.1(b). The regulation requires that notice be given to the officer whose removal is sought distinctly stating grounds for removal. My review of the petition indicates that petitioner failed to use the appropriate notice required in the regulation. He also makes generalized statements in his petition regarding the grounds for removal and does not specifically and distinctly state the facts under which respondents should be removed as required by the regulation. Therefore, I must dismiss the application on that basis.

The application must also be dismissed on the merits. Education Law '306 provides, in pertinent part:

With respect to the merits of this application, school district officers can only be removed under '306 when they engage in a "wilful violation or neglect of duty." This means that there must be "a purpose or intent to disregard a lawful duty or to violate a legal requirement" (Application of Kozak, 34 Ed Dept Rep 501; Matter of Felicio, et al., 19 id. 414; Matter of Winograd, et al., 17 id. 213; Matter of Trigilio and Iannotta, 14 id. 385). Mere negligence on the part of a school officer is not enough to warrant removal (Appeal of Schofield, 34 Ed Dept Rep 143).

In this case, the acts about which petitioner complains do not rise to the level of wilful misconduct. While petitioner has proven a violation of the RPTL, he has failed to show any purpose or intent by respondents to disregard a legal requirement. Although respondents' budgeting practices do not comply with RPTL '1318, that fact alone, without an intentional violation of law, does not subject respondents to removal.

Respondents note that they intend to comply in all respects with RPTL '1318 for the 1995-96 fiscal years. In an application filed on October 12, 1995 and accepted under 8 NYCRR 276.5, respondents submitted the auditor's statement and balance sheet for the school year ending June 30, 1995. On October 20, 1995, petitioner submitted a rebuttal to respondents' application, alleging that the district's transfer of funds to a liability reserve account was still a violation of RPTL '1318. However, the auditor's statement indicates that, in compliance with RPTL '1318, unexpended surplus funds have been reduced. The amount retained was $643,488, which is not in excess of 2% of the district's 1995-96 budget of $32,181,745. Therefore, it appears that respondents have discontinued the practice in question. Respondents should endeavor to be scrupulous in their future budgetary practices, as another violation of RPTL '1318 may well now be sufficient to warrant their removal from office.

I have considered the parties' remaining contentions and find them without merit.

THE APPLICATION IS DENIED.

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