Decision No. 13,819

(August 18, 1997)

CATE, Acting Commissioner.--Petitioner, a member of the Board of Education of the DeRuyter Central School District, seeks the removal of Bruce Revette ("respondent") as a member of that board pursuant to Education Law "306. The application must be dismissed.

Petitioner alleges that during the September 12, 1996 meeting of the DeRuyter Central School District Board of Education ("board"), respondent called him a crude name and made a comment in response to a district employee, who had previously charged respondent with sexual harassment, which included the word "bimbo" despite previous admonitions by the board to refrain from such behavior. Petitioner also alleges that respondent, over the last several years, has continually acted in an obstructive, abusive, and demeaning manner to fellow board members and that respondent has used verbal assaults, profanity, shouting, and physical displays of anger against other board members during board meetings. Petitioner states that this type of behavior has led, in the past, to respondent being officially reprimanded by the board.

Petitioner also contends that respondent physically assaulted him after the September 12 board meeting by jabbing his finger into petitioner's chest, screaming at him, pushing him and threatening him. Petitioner filed a complaint with the New York State Police on September 17, 1996 and respondent was arrested for second-degree harassment. On the same date, petitioner was granted a temporary order of protection against respondent that directed respondent to stay away from petitioner and petitioner's home, but permitted respondent to attend board meetings. Petitioner commenced this application for removal of respondent from the board on October 10, 1996.

Initially, respondent did not submit an answer to the petition. A letter from my Office of Counsel informed him that his answer was late and advised him of the consequences of refusing to submit an answer. Respondent then returned a copy of that letter upon which he had placed a handwritten note, which did not address the issues raised in the petition, and attached a copy of a memorandum written by the board's president to the petitioner on October 9, 1996. There is no evidence that respondent served petitioner with a copy of these materials as required by "275.8(b) of the Commissioner's Regulations. Therefore, respondent's answer was late, deficient, and not properly served (8 NYCRR ""275.8(b), 275.12 and 275.13). Accordingly, I will not consider the materials submitted by respondent in making my determination and all factual allegations set forth in the petition will be deemed to be true statements which have been admitted by respondent (8 NYCRR "275.11).

On April 16, 1997, my Office of Counsel requested additional information regarding the altercation between them from both parties pursuant to "276.5 of the Regulations of the Commissioner of Education. Respondent submitted a response but, again, respondent failed to indicate whether petitioner was served with a copy of the response to that request and I will not consider that response in making my decision.

The Education Law authorizes the Commissioner of Education to remove a member of the board of education for a wilful violation or neglect of duty or wilful disobedience of any decision, rule, or regulation of the Board of Regents or the Commissioner of Education (Education Law "306[1]). An application seeking the removal of a school officer must set forth the wilful violation of law, neglect of duty, or wilful disobedience of a decision, order or regulation of the commissioner charged against the officer and the facts by which it is established (8 NYCRR "277.1[a]). To be considered wilful, respondent's actions must have been done intentionally and with a wrongful purpose (Application of Cobler, 35 Ed Dept Rep 176; Application of Sabuda, 31 id. 461). In an appeal before the Commissioner of Education, petitioner has the burden to establish the facts upon which he or she 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 has failed to establish that respondent's actions constitute a wilful violation or neglect of duty under the law. It is clear that an error in judgment or an instance of inappropriate or unbecoming speech by a board member is not grounds for his removal (Application of Gellatly, et al., 30 Ed Dept Rep 10; Application of Bd. of Ed., Cornwall CSD, 25 id. 250). Thus, respondent's choice of words during the September 12 board meeting, while inappropriate and unprofessional, does not constitute grounds for removal under Education Law "306. As for the shoving incident, removal might have been appropriate if the incident had occurred during the board meeting and disrupted the meeting or interfered with the board's ability to function (see, Application of Kozak, 34 Ed Dept Rep 501). However, in this case, the incident occurred after the board meeting and there is no evidence it interrupted board business (see, Application of Carney, 14 Ed Dept Rep 54). Although a board member must conform to the Penal Law (Application of Kozak, supra), there is no evidence in the record to indicate that respondent has been found guilty of the charges in this matter. Therefore, respondent's conduct, while unfortunate and undignified, does not, on the record before me, rise to the level of misconduct required for removal under Education Law "306 (Appeal of Carney, supra).

Although I am constrained to dismiss this appeal, I note that this is the second appeal in recent months seeking the removal of Mr. Revette as a board member. Although the Commissioner has not as yet found Mr. Revette's conduct sufficient to warrant removal, I am troubled by his apparent pattern of inappropriate and unprofessional behavior. In light of these cases, I strongly urge respondent to engage in constructive discussions aimed at achieving the best possible governance of the school district and to avoid disruptive and rude behavior that would be counterproductive to that goal. I further warn Mr. Revette to refrain from such behavior, as his continued conduct may well, at some point, amount to sufficient grounds for removal. Finally, I remind the board that it may take appropriate action against Mr. Revette if it believes he is not fulfilling his duties as a board member.

THE APPEAL IS DISMISSED.

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