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Decision No. 13,747

Application of JOHN FRANCIS LUPIANI for the removal of Henry G. Klemann as president and member of the Board of Education of the Honeoye Central School District.

Decision No. 13,747

(March 14, 1997)

Harter, Secrest & Emery, attorneys for respondent, David M. Kresock, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Henry G. Klemann as a member and president of the Board of Education of the Honeoye Central School District pursuant to Education Law '306. The application must be denied.

Petitioner bases his request on five allegations:

1. Respondent allegedly used intimidation to restrict criticism of his leadership and to eliminate allegations of misconduct;

2. Respondent allegedly conducted school business in avoidance of public scrutiny and in willful violation of New York State Law;

3. Respondent allegedly violated petitioner's constitutional right to free speech;

4. Respondent allegedly manipulated board meetings to prevent public scrutiny; and

5. Respondent allegedly threatened the public with constraints on the opportunity to observe and to participate in board meetings.

Petitioner requests that I remove respondent from the board. Petitioner also asks me to instruct the Honeoye Central School Board and administration regarding the proper conduct of board meetings and the authority and responsibilities of individual board members and administrators. Petitioner's request for interim relief was denied on November 27, 1996.

Respondent raises a number of defenses including timeliness, jurisdiction, standing, and failure to state a claim on which relief can be granted.

First, the appeal must be dismissed for failure to join a necessary party. A party whose rights would be adversely affected by a determination for the petitioner is a necessary party and must be joined as such (Appeal of Frasier, 34 Ed Dept Rep 315). Here, petitioner requests relief directed at the Board of Education. If petitioner were to prevail, the Board's rights would be affected. Therefore, the Board is a necessary party and the appeal must be dismissed for failure to join it.

In addition, certain alleged facts upon which petitioner bases his allegations are untimely. An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). Petitioner commenced this action on November 9, 1996, basing his allegations on events which allegedly occurred during July, September and October 1996. In his reply, petitioner contends that these events constitute ongoing wrongs in that they establish a pattern of behavior. Ongoing wrongs are actions which have continuing effects that are subject to challenge at any time, such as the hiring of uncertified teachers who then remain improperly employed by the district (Appeal of Nettles, 31 Ed Dept Rep 437; see alsoAppeal of Caldwell, 36 Ed Dept Rep ___, Decision No. 13729, dated January 8, 1997). Petitioner's allegations are based on discreet events, which do not have continuing effects that are subject to challenge. Therefore, to the extent that events occurred prior to October 10, 1996, they will be disregarded as untimely.

Furthermore, to the extent that petitioner's allegations concern violations of the Open Meetings Law, I lack jurisdiction to decide those claims. The appropriate forum for addressing a violation of the Open Meetings Law is the Supreme Court of the State of New York (Public Officers Law '107; Appeal of Marek, 35 Ed Dept Rep 314; Appeal of Nolan, et al., 35 id. 139).

Petitioner's first allegation -- that respondent used intimidation to restrict criticism and to eliminate allegations of misconduct -- is based on events that occurred at two board meetings. To the extent that the allegation is based on events that took place at a September 25, 1996 board meeting, it is untimely. To the extent that the allegation is based on events at the October 10, 1996 board meeting, petitioner has failed to demonstrate a clear legal right to relief.

Petitioner alleges that while he was making a statement at the October 10, 1996 board meeting, respondent "charged the podium," threatened to have him arrested, and threatened to "bash" him. Respondent admits that a verbal disagreement occurred during which he made comments "substantially similar" to those alleged, but that after a short recess he apologized for losing his temper and for making inappropriate comments. In an appeal before the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR 275.10) and the burden of establishing the facts upon which he or she seeks such relief (Appeal of Caldwell, supra; Appeal of Marek, 35 Ed Dept Rep 314). Education Law '306 authorizes 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, respondent's actions must have been intentional and with a wrongful purpose (Application of Cobler, supra; Application of Borges, supra). While I do not condone respondent's actions, such actions do not demonstrate a willful violation or neglect of duty sufficient to warrant removal pursuant to Education Law '306 (seeAppeal of Cox, 27 Ed Dept Rep 353).

Petitioner's second allegation -- conducting school business in avoidance of public scrutiny and in willful violation of New York State Law -- is based on three events. To the extent that the allegation is based on events that took place at a July 24, 1996 board meeting, it is untimely. To the extent that the allegation is based on respondent's alleged announcement that he was going to change the public speaking policy for board meetings -- a change that was never implemented -- petitioner has failed to demonstrate a willful violation or neglect of duty necessary for removal under Education Law '306. Petitioner also alleges, and respondent admits, that respondent implemented certain changes to the integrated language arts program. Although those changes were made prior to October 10, 1996, petitioner argues that the facts were not confirmed until the October 10, 1996 board meeting. Assuming, arguendo, that the allegation is timely, petitioner has failed to establish any improper or illegal action.

In his third allegation, petitioner alleges that respondent violated his First Amendment right to free speech. An appeal to the Commissioner is not the proper forum to decide novel constitutional questions (Appeal of Weiss, 35 Ed Dept Rep 519; Appeal of Silano, 33 id. 20; Appeal of Martin, 32 id. 381). Therefore, petitioner's allegation that respondent violated his constitutional rights is not a basis for removal under '306.

Petitioner's fourth allegation -- that respondent allegedly manipulated board meetings to prevent public scrutiny -- is based on events which allegedly took place in July 1996, and therefore is untimely.

In support of his fifth allegation, petitioner quotes respondent's alleged comments at an October 24, 1996 board meeting regarding live television coverage of such meetings. Petitioner has again failed to establish that these actions constitute a willful violation or neglect of duty necessary for removal under Education Law '306.

THE APPEAL IS DISMISSED.

END OF FILE