Decision No. 13,615

(June 5, 1996)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the approval by the Board of Education of the Enlarged City School District of the City of Hudson ("respondent") of a bond resolution and also seeks the removal of all members of the board. The appeal must be dismissed.

Respondent is a small city school district organized under Article 51 of the Education Law. Under Education Law '2512, respondent has the authority to construct new school buildings and may authorize bonds with a maturity date not to exceed ten years without a separate vote by the residents of the district (Local Finance Law '37).

In September 1992, respondent directed the superintendent to investigate future capital projects and form a task force to analyze current facility conditions, capacity and future educational needs of students. The task force issued its report in December 1992, addressing the possible need for district-wide consolidation of elementary schools. Respondent adopted a resolution on July 23, 1993, supporting the district-wide consolidation and authorizing the superintendent to develop plans. On September 13, 1993, the superintendent submitted a report which offered two alternatives to achieve temporary consolidation by the beginning of the 1994-95 school year, as respondent requested. In response to community concerns, respondent established an advisory committee with participation from community members to develop a permanent consolidation plan. On December 23, 1993, respondent voted to eliminate the temporary consolidation plan based on the advisory committee's findings.

On February 7, 1994, respondent held a special meeting to review the various consolidation proposals contained in the advisory committee report. One of the proposals called for the construction of a new elementary school for all kindergarten through grade three students. The estimated cost of constructing the consolidated elementary school was approximately $21 million. At the March 7, 1994 board meeting, the advisory committee report was discussed. On April 4, 1994, respondent adopted a resolution selecting the proposal to construct a new elementary school and authorizing respondent's architect to develop plans for the construction of the new school. Over the next eighteen months, the construction plans were developed and discussed at respondent board's meetings.

On January 22, 1996, respondent adopted a resolution authorizing the issuance of bonds in the amount of $21.5 million to construct a new elementary school. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on February 29, 1996.

Petitioner alleges that respondent's adoption of the bond resolution was arbitrary and capricious. Petitioner lists a number of reasons why the bond resolution should not have been approved, including poor economic conditions in the area, questionable hiring practices on the part of respondent, the misapplication of public funds, questionable disbursement of state funds, inadequate notice of the January 22, 1996 board meeting, the environmental impact study and related data, shared costs and related expenditures, improper use of the media to mislead taxpayers, role of shared decisionmaking/strategic planning committees, unsafe/unhealthy school conditions, delay and disregard of taxpayers wishes, conflicts of interest violations and denial of freedom of information law requests. Petitioner seeks an order overturning the bond resolution, legislation requiring voter approval of such projects and the removal of the board of education.

Respondent contends that its actions approving the bond resolution were not arbitrary and capricious and were in all respects proper. Respondent contends that the petition fails to state a clear and concise statement of petitioner's claim, that the allegations do not state any grounds for granting the relief sought, that voter approval of bond issues not in excess of ten years is not required under Education Law '2512 and that the Commissioner of Education lacks jurisdiction over Freedom of Information Law and Open Meetings Law claims. Finally, respondent contends that the conduct alleged by petitioner does not warrant removal of the board and requests a certificate of good faith.

The appeal must be dismissed on the merits. Respondent represents a small city school district organized under Article 51 of the Education Law that has the authority to construct new school buildings and authorize bonds with a maturity date not to exceed ten years without a separate vote by the residents of the district (Local Finance Law '37.00(b)(1); Matter of Gautcher, 15 Ed Dept Rep 6). Beginning in September 1992, respondent began reviewing its future capital projects and ultimately determined that it would construct a new elementary school to consolidate three separate school communities, achieve racial and socio-economic balance, promote more efficient utilization of resources, meet projected enrollments and avoid costly renovations of inadequate existing facilities. In January 1996, respondent adopted the resolution authorizing the bond issue for the elementary school construction. Petitioner clearly believes that this new construction is unnecessary and supports legislation that would require voter approval of such construction projects. However, my review of the record indicates that respondent acted properly and within its current legal authority in authorizing the project.

Petitioner also seeks the removal of the board for authorizing the construction project. Education Law '306 empowers the Commissioner of Education to remove a member of the board of education for a willful violation or neglect of duty under the law (Education Law '306(1); Application of Cobler, 35 Ed Dept Rep 176; Application of Borges, 34 id. 459). To be considered willful, respondents' actions must have been intentional with a wrongful purpose. Petitioner has failed to establish that respondents' actions were motivated by a wrongful purpose. To the contrary, respondents' attorney indicates that respondents acted in good faith on the advice on counsel concerning the elementary school construction project. Therefore, there is no basis to remove respondent board members from office.

Education Law '3811 requires school districts to pay for the legal expense 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, respondent requests that I issue a certificate of good faith. In light of the fact that the appeal is dismissed on the merits, respondents are entitled to a certificate of good faith.

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

THE APPEAL IS DISMISSED.

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