Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for

respondents, Dennis Barrett, Esq., of counsel

MILLS, COMMISSIONER.--Pursuant to "276.8(c) of the Regulations of the Commissioner of Education, I hereby determine that Decision No. 13830, dated September 2, 1997, must be reopened in the interests of justice to determine an issue that was inadvertently left unaddressed in that Decision.

In the original appeal, respondents requested pursuant to Education Law "3811 that I issue a certificate of good faith with respect to respondent Kehoe. That statute provides that a school district must pay a school district officer’s legal expenses in proceedings arising out of the officer’s exercise of his or her official duties provided that the officer notifies the board of education in writing of the commencement of the proceeding within five days after service of process, and the Commissioner of Education or the court, as appropriate, certifies that the school officer appeared to have acted in good faith with respect to the exercise of his powers or the performance of his duties.

Although there is no indication in the record that respondent Kehoe provided the board of education with the written notice specified in Education Law "3811(1), respondents provide an excerpt from the minutes of the July 22, 1996 board meeting which indicates that the board adopted a resolution expressing "its full and unconditional support for [the superintendent] in her defense of allegations in regard to the June 5, 1996, school budget vote . . ." It is clear that the board was on notice of the proceeding and was willing to defend respondent Kehoe. I find that the purpose of the statute was substantially satisfied and that adequate and timely notice of the proceeding was provided to the board of education (Application of Beadle et al., 25 Ed Dept Rep 267; Matter of McNulty v. Binghamton City School Dist., 110 Misc. 2d 239).

With regard to respondent’s request for a certificate of good faith, I find, upon the record before me, that respondent Kehoe has acted in good faith to discharge her duties. In the original appeal, although I dismissed most of the allegations against respondents, I found that the distribution of paper strips with the slogan "HAVE A HEART – DO YOUR PART" should be discontinued in future school district elections because such distribution presents at least the appearance of improper partisan activity on behalf of the proposed budget. While I disagreed with respondent Kehoe’s contention that the distribution of the "HAVE A HEART" paper strips were a permissible means to encourage voter turnout, and ordered that respondents refrain from any future distribution of the strips, it does not necessarily follow that the superintendent’s actions with respect thereto were taken in bad faith. The record indicates that her actions were based upon her mistaken belief rather than on a willful or reckless disregard of the law. Accordingly, pursuant to Education Law "3811, I hereby certify that respondent Kehoe acted in good faith with respect to the performance of her duties as related to this proceeding.

IT IS ORDERED that Decision No. 13830 is reopened and modified to the extent indicated above.

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