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Decision No. 13,846

Appeal of JACK VAN ZILE and ELMER CROWELL, from actions of Madelyn Bradigan, Tina Duliba, Janet Burns and Tom Bixby, members of the Forestville Central School District, regarding executive session.

Decision No. 13,846

(November 3, 1997)

Hodgson, Russ, Andrews, Woods & Goodyear, LLP, attorneys for respondent, Karl W. Kristoff and Mary Thomas Scott, Esqs., of counsel

MILLS, Commissioner.--Petitioners, members of the Board of Education of the Forestville Central School District, challenge actions taken by respondent board members in executive session meetings of the Board of Education of the Forestville Central School District ("board"). The appeal must be dismissed.

On June 5, 1996, J. Richard Rodriguez, the superintendent of the Forestville Central School District ("district") informed respondent Tina Duliba, then president of the board, that he was to begin a new position in another district, effective August 5, 1996. However, he was required, under the terms of his employment contract with the district, to give 90 days' notice before he could leave his position. Rodriguez and respondent Duliba discussed an accommodation of that requirement so that his resignation would be effective August 4, 1996.

On June 19, 1996, at an executive session of the board, Rodriguez tendered his resignation. Respondent Duliba and Rodriguez explained to the board the accommodation plan they had discussed whereby Rodriguez would give back to the district 31 of his unused paid vacation days and a pro-rated portion of a performance bonus that was due to him, and in exchange the board would waive the 90-day notice requirement. At the regular board meeting on that date, the board voted to accept Rodriguez's resignation effective August 4, 1996. On July 1, 1996, Rodriguez distributed a memo, addressed to respondent Duliba, at a special meeting of the board, which outlined the accommodation plan and the salary figures and calculations to be used. On September 4, 1996, the board passed a resolution that accepted Rodriguez's resignation and the accommodation plan as discussed at the June 19, 1996 executive session. This appeal ensued.

Petitioners allege that respondent Duliba released Rodriguez from his contract without the consent of the remainder of the board. Petitioners also allege there has been intentional misuse of executive sessions resulting in the expenditure of tax dollars without proper board or public approval, by allowing the superintendent to use other contracted funds to compute "per diem" and by forcing the district to hire an interim superintendent. Petitioners request that I investigate to ascertain if other public monies have been approved for expenditure in executive sessions over the past several years, and to determine if these acts constitute a willful and intentional preclusion of public involvement by the board.

Respondents contend that petitioners have failed to state a claim upon which relief can be granted, that the petition is untimely and lacks specificity. Respondents also contend that petitioners improperly seek relief for violations of the Open Meetings Law, that respondents have not violated Education Law "306, and that any deficiencies in the agreement with Rodriguez were cured by the adoption of the formal board resolution on September 4, 1996.

I will first address respondents' procedural argument that the appeal is untimely. An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or act complained of (8 NYCRR "275.16). Petitioners request that I investigate the improper use of executive sessions over the past several years. The only specific executive session identified in the petition was held on June 19, 1996, more than 30 days prior to the commencement of this appeal. As all of the executive sessions occurred more than 30 days prior to the commencement of this appeal, the appeal must be dismissed as untimely.

Even if it were not untimely, the appeal would be dismissed for lack of jurisdiction. The essence of petitioners' claims is that respondents have improperly used executive sessions. The Open Meetings Law governs the use of executive sessions. 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 Pulvermacher, 36 Ed Dept Rep 333; Appeal of Marek, 35 id. 314). Accordingly, the appeal must be dismissed for lack of jurisdiction.

Petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Gordon, 36 Ed Dept Rep 343; Appeal of Nash, 35 id. 203; Appeal of Goldman, 35 id. 126). In this appeal, petitioners' request that I undertake an investigation of past board practices in regard to alleged misuse of executive sessions. An appeal to the Commissioner of Education pursuant to Education Law "310 is appellate in nature and does not provide for investigations (Appeal of Distefano, 36 Ed Dept Rep 217; Appeal of Vitek, 26 id. 345). In any event, since petitioners' claims concern violations of the Open Meetings Law, petitioners have failed to establish any facts that would warrant an investigation by the Commissioner.

THE APPEAL IS DISMISSED.

END OF FILE