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Decision No. 13,800

Application of ELLEN OMEARA, ADELE MUSTO and MARY VOLOSEVICH for the removal of Scott Abramson as a member of the Board of Education of the City School District of the City of Long Beach.

Decision No. 13,800

(July 28, 1997)

David C. Bloomfield, Esq., attorney for petitioners

Ingerman Smith, LLP, attorneys for respondent, Anna M. Scricca, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks respondent's removal as a member of the Board of Education of the City School District of the City of Long Beach pursuant to Education Law '306. The application must be denied.

Petitioners are all taxpayers and residents of the Long Beach district. They seek removal of respondent Scott Abramson on a variety of grounds and theories. Their allegations fall into roughly three categories: (1) actions by respondent in his capacity as a basketball coach of an organization known as Young Israel of Long Beach, which used district facilities for practices and games; (2) actions by respondent in his capacity as a board member; and (3) actions by respondent in the course of a business transaction with petitioner Musto and her husband, while petitioner Musto was an employee of the district.

Petitioners first claim that respondent obtained money from Young Israel of Long Beach, of which petitioner Omeara was vice president, for equipment and baseball tickets, which money was allegedly converted by respondent. Petitioners also allege that respondent failed to report certain "transactions" between the school district and Young Israel, in violation of law. Petitioners further allege that respondent unilaterally changed the location of his Young Israel team's practice facility from one of the district schools to another, thereby endangering the validity of Young Israel's insurance coverage. Petitioners have shown no "transactions" between the school district and Young Israel, other than the district's permission to use certain athletic facilities. The other allegations with respect to the alleged conversion of funds or endangerment of insurance coverage are matters strictly between Young Israel and respondent in his capacity as a member of that organization. With respect to this group of claims, I find that the petition does not state a cause of action.

Petitioners' second claim deals with a variety of incidents. Petitioners variously claim that respondent harassed petitioner Volosevich's husband, promised employment with the school district to certain persons, had a high school principal removed, revealed allegedly confidential information, was instrumental in the firing or other separation of three athletic directors, and wrongly voted to terminate the employment of a clerical worker on September 24, 1996. I find that most of the events alleged within this group of claims occurred more than 30 days prior to the commencement of this appeal, and are therefore time barred by 8 NYCRR '275.16. With respect to any incidents which are not time barred, even if true, I do not find that they amount to a "wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in state funds, or wilfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education ..." (Education Law '306[1]), and are therefore not a basis for removal.

Petitioners' third group of claims relate to a business transaction initiated in January 1996 between petitioner Musto, her husband and respondent. Petitioners allege that the Mustos paid respondent $1500 for his services in brokering an agreement between the Mustos and the Village of Island Park to acquire certain property to expand their business. At the time of the transaction, respondent was a member of the board of education and petitioner Adele Musto was employed by the district as a provisional telephone operator. In April 1996, petitioners allegedly demanded a return of their money. Thereafter, respondent commenced a defamation action against the Mustos. On September 24, 1996, the board of education voted three to two to terminate petitioner Musto from her 17 years of employment with the district. Respondent voted in favor of that resolution.

With respect to the termination of Adele Musto, respondent points out that she was a provisional civil servant, who was not eligible for permanent appointment based upon a Civil Service eligibility list dated May 20, 1996, and that her termination was recommended by the superintendent of schools. While petitioners' reply characterizes the dismissal of Adele Musto as "retaliatory," it does not address the fact that, as a provisional employee, her score on the eligibility list dated May 20, 1996, was not high enough to allow her permanent appointment. (Respondent also argues that this event is time-barred, having occurred more than 30 days before the commencement of this appeal.) I must conclude that the termination of petitioner Musto was not in any way illegal, nor would it justify the removal of respondent.

Respondent has asserted three legal objections and five affirmative defenses. In view of my disposition of this matter, it is not necessary to discuss them herein. I have considered the other claims and allegations of the parties, and found them without merit.

THE APPLICATION IS DENIED.

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