MILLS, Commissioner.--Petitioner seeks the removal of Steven Boder, James Heizman, Andrew Solano, Frank Consiglio, and Joseph Rizzolo as members of the Board of Education of the Middle Country Central School District pursuant to Education Law "306. Respondents request dismissal of this appeal and attorneys' fees and costs for defending this action. In addition, respondents request my certification that they acted in good faith with respect to the exercise of their powers and the performance of their duties. The application must be denied.

On September 20, 1995, the Board of Education of the Middle Country Central School District considered the adoption of a new code of ethics (Board Policy #6110) at a public meeting. The board waived its attorney/client privilege and discussed the code with its attorneys. The attorneys stated legal concerns with four provisions of the proposed code. The five named respondents voted to adopt the code of ethics, notwithstanding the legal concerns voiced by the board's attorneys, and the code was adopted.

Petitioner is a taxpayer and resident of the Middle Country Central School District. Petitioner seeks the removal of the five board members who voted to adopt the code of ethics, alleging that respondents voted to adopt it even though they knew four provisions were unlawful.

Respondents contend that the code of ethics does not violate the law because it expressly states that any disciplinary actions taken as a result of violation of the code are "subject to any rights the individual may have pursuant to statute, contract, law, rule or regulation." Respondents also contend that they acted in good faith to test the scope of Article 18 of the General Municipal Law.

Before reaching the merits, it is necessary to address several procedural issues. Respondents have submitted a supplemental affidavit by respondent Heizman, dated December 6, 1995, together with attached exhibits, and an affirmation by respondents' attorney, dated January 20, 1998. Pursuant to the authority granted by section 276.5 of the Regulations of the Commissioner of Education (8 NYCRR "276.5), I have accepted for consideration said affidavit, exhibits, and affirmation.

Three of the respondents, Steven Boder, James Heizman and Andrew Solano, are no longer board members. Accordingly, the application for their removal is moot. The Commissioner determines only matters in actual controversy and will not render a determination on an issue which subsequent events have laid to rest (Appeal of Hebrew Institute, 31 Ed Dept Rep 53; Appeal of Bahret, 30 id. 161). However, I will consider whether the three former board members acted in good faith for purposes of indemnification by the school district of the costs of defending this action, pursuant to the requirements of Education Law "3811.

Respondent Heizman requests dismissal of this action because of improper service of the petition. Section 275.8 of the Regulations of the Commissioner of Education (8 NYCRR "275.8) requires a petition to be "personally served upon each named respondent, or, if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner."

Petitioner admits that he did not personally serve the petition on respondent Heizman or another person at his residence, but he left the petition on the stoop of Heizman's house on the evening of October 19, 1995, and subsequently mailed a copy of the petition to Heizman. Petitioner claims that respondent Heizman refused to open the door to accept service on October 19, 1995. Heizman states that he was home on the evening of October 19, 1995, but did not hear anyone at his door. He states that he received the petition for the first time on October 23, 1995, when he found it on the stoop of his house.

For permission to use an alternative method of service, other than personal service, petitioner should have requested my direction, as required by section 275.8 of the Regulations of the Commissioner of Education (8 NYCRR "275.8). Petitioner did not do so. Accordingly, the action against Heizman is dismissed for improper service of the petition.

Section 275.16 of the Regulations of the Commissioner of Education (8 NYCRR "275.16) requires that an appeal to the Commissioner be instituted within 30 days from the making of the decision or the performance of the act at issue. The board vote on the code of ethics occurred on September 20, 1995. Even if I were to construe Heizman's receipt of the petition on October 23, 1995 as proper service, that date is more than 30 days from September 20, 1995. Accordingly, the action against Heizman is dismissed as untimely.

Respondents set forth two affirmative defenses in their memorandum of law which are not set forth in their answer -- that petitioner lacks standing and that petitioner asks for an advisory opinion which the Commissioner does not issue. Section 275.12 of the Regulations of the Commissioner of Education (8 NYCRR "275.12) requires that respondents' affirmative defenses be set forth in their answer. A memorandum of law may not be used to belatedly add new assertions which are not part of the pleadings (Appeal of Coombs, 34 Ed Dept Rep 253; Appeal of the Bd. of Educ., Tuxedo Union Free School District, 33 id. 626). Accordingly, while I have reviewed the memorandum of law, I have not considered the portions of it that contain the aforementioned affirmative defenses.

Turning to the merits, Education Law "306 authorizes the Commissioner of Education to remove a trustee or member of the board of education for willful violation or neglect of duty under the law (See, Education Law "306[1]). Petitioner claims that respondents willfully violated the law by adopting a code of ethics which they knew contained four illegal provisions. To determine whether respondents willfully violated the law, it is first necessary to determine whether the four provisions of the code of ethics identified by petitioner are in fact unlawful.

The State Legislature has delegated to school districts the responsibility to develop ethical standards of conduct for their employees and officers (See, General Municipal Law "806[1]). However, such standards may not conflict with the requirements of Article 18 of the General Municipal Law, which specify the conflict of interest requirements applicable to officers and employees of school districts and other municipalities (Opinion of State Comptroller 82-189). General Municipal Law "806(1) provides that a local code of ethics "may regulate or prescribe conduct which is not expressly prohibited by this article [Article 18 of the General Municipal Law] but may not authorize conduct otherwise prohibited." (Emphasis added.) The courts have held that local governments may not adopt ethical standards that are contradictory, incompatible or inharmonious with State law (Belle, et al. v. Town Board of the Town of Onondaga, et al., 61 AD2d 352; Town of Clifton Park v. C.P. Enterprises, et al., 45 AD2d 96). Where the Legislature has not expressly addressed the conduct at issue, a board of education may adopt a local code of ethics that is more stringent than Article 18 of the General Municipal Law. However, a board may not adopt a local code of ethics that conflicts with a provision of Article 18 or other statute which expressly addresses the conduct either by permitting the conduct or prohibiting it (Appeal of Behuniak and Lattimore, 30 Ed Dept Rep 236).

The first two provisions that petitioner alleges are unlawful involve the definition of "interest" in the district's code of ethics (Article IV of the Code of Ethics). The first provision states that district officers and employees, including board members, shall be deemed to have an interest in the contract of family members. It would require a board member to recuse himself or herself from voting on the collective bargaining agreement between the school district and the district's unions, if that board member had a family member covered by the collective bargaining agreement. Petitioner claims that this "clearly goes against practice that a collective bargaining agreement is exempt from General Municipal Law "801...."

Section 802(1)(f) of the General Municipal Law specifically exempts from conflict of interest coverage of General Municipal Law "801, "contract[s] with a membership corporation or other voluntary non-profit corporation or association." In Stettine v. County of Suffolk (66 NY2d 354), the Court of Appeals found that a collective bargaining agreement between a local government unit and a union formed as a nonprofit voluntary association or corporation was within the exemption in General Municipal Law "802(1)(f). In addition, General Municipal Law "800(3) specifically exempts employment contracts with spouses, minor children and dependents from conflict of interest coverage. Accordingly, I find the local code provision to be unlawful because it conflicts with express exemptions in the General Municipal Law.

The second provision at issue requires a board member to recuse himself from voting on a contract involving: "A collective bargaining unit of the District, when under the employ of another School District and/or having been or being a member of a similar unit." Again, petitioner claims that this provision is inconsistent with the exemption from conflict of interest coverage found in General Municipal Law "802(1)(f), as interpreted by Stettine v. County of Suffolk, supra, which permits board members to have an interest in school district contracts with unions that are voluntary nonprofit associations or corporations. I agree with petitioner. The provision is unlawful because it is in conflict with the General Municipal Law exemption.

I also find this code provision to be unreasonably broad. A code of ethics standard must be reasonably calculated to achieve a legitimate public purpose (Belle et al. v Town Board of the Town of Onondaga, supra). Under this provision, a covered individual, including a board member, would have a prohibited interest in a collective bargaining agreement of a particular bargaining unit of the school district, if that individual were either: (1) employed by another school district and in a similar bargaining unit; or (2) ever a member of a similar bargaining unit, regardless of current employment. It is unreasonable to conclude that a board member has a conflict of interest in a collective bargaining agreement of his or her school district simply because that board member is a member of a similar collective bargaining unit of another school district or was once a member of a similar collective bargaining unit. I find the provision to be unlawful because it is unreasonably broad.

The third provision at issue (Article 11C) requires candidates for board membership to file a financial disclosure form with the district's ethics board simultaneous with the filing of their designating petitions. Petitioner claims that the provision is unlawful because it adds a qualification that must be met by candidates for board membership to those provided in Education Law "2102.

General Municipal Law "806(1) requires boards of education to adopt a code of ethics "for the guidance of its officers and employees." It does not authorize a board of education to establish a code of ethics for individuals who are not yet officers or employees of the district, including candidates for office. I am unaware of any statutory authority that would permit the board to establish this additional qualification for board membership. In Education Law "2102, the Legislature has established the qualifications for membership on a board of education: an individual must be able to read and write, must have been a resident of the district for at least one year prior to the election and must be a qualified voter of the district. The provision at issue is unlawful because a board of education has no authority to create an additional qualification to hold the office of member of a board of education (Application of the Board of Education of the Guilderland Central School District, 23 Ed Dept Rep 262).

The fourth and final provision at issue (Article 2A[2][e]) relates to removal procedures for members of the district's ethics board. The provision requires a super-majority vote (a majority plus one) of the board of education for removal of a member of the ethics board. Petitioner claims that requiring a super-majority vote of the board of education is unlawful.

General Construction Law "41 requires a majority of the entire board to take any official action. A school board may not adopt a policy requiring affirmative votes by more than a majority of the whole number of the board to take official action, because neither the Education Law nor the General Construction Law authorizes a board to adopt requirements in excess of those already provided by statute (Matter of Miller, 17 Ed Dept Rep 275). Accordingly, this provision, requiring a super-majority of the board of education for the removal of a member of the ethics board, is unlawful.

Having found the four code of ethics provisions at issue to be unlawful, the next question to be answered is whether respondents willfully violated the law, as claimed by petitioner. Before the Commissioner of Education will remove a member of a board of education, it must be established that the individual has committed a willful violation of law or neglect of duty (See, Education Law "306). To be considered willful, the board member's action must have been intentionally done with a wrongful purpose (People v Skinner, 37 App Div 44 aff'd 159 NY 162; Application of Scala, 31 Ed Dept Rep 159; Application of Mody and Casey, 30 id. 402; Application of Cotroneo, 29 id. 421).

In answer to petitioner's claim that respondents willfully violated the law, respondents state that the code of ethics is in fact lawful because it provides that any disciplinary action taken as a result of violations of the code are "subject to any rights the individual may have pursuant to statute, contract, law, rule or regulation." I do not find this argument persuasive. It fails to consider that the provisions at issue could have a chilling effect on the behavior of board members and other covered individuals who may wish to avoid disciplinary action. Obviously, the code should not contain unlawful provisions. The fact that an individual may challenge those provisions at a later time is beside the point.

Respondents also claim that they did not willfully violate the law because they acted in good faith to test the scope of Article 18 of the General Municipal Law. Respondents state that section 806 of the General Municipal Law permitted them to adopt a more stringent ethical standard than that provided in Article 18 of the General Municipal Law, and this is what they did.

Based on the record before me, I do not find that respondents willfully violated the law because I do not find that they acted intentionally with a wrongful purpose. Respondents acted with appropriate concerns -- to adopt a more stringent code of ethics than required under Article 18 of the General Municipal Law, which they were permitted to do provided the code did not conflict with a statutory provision that expressly addressed the conduct. Moreover, I do not view respondents' good faith efforts to test the scope of Article 18 of the General Municipal Law to be a basis for finding that they acted to willfully violate the law. Respondents could have exercised better judgment, but poor judgment is not a basis for removing board members (Application of Gellatly, 30 Ed Dept Rep 10).

While I will not order the removal of respondents, I do direct the modification of the code of ethics to conform with the findings of this decision.

Respondents have requested that I certify, pursuant to Education Law "3811(1), that they appeared to have exercised their powers and performed their duties in good faith. A certificate of this nature may only be issued if there is record evidence that the party seeking the certificate notified the board of education in writing of the commencement of an appeal to the Commissioner and that the board, within 10 days following receipt of that notice, designated and appointed legal counsel to represent the individual. The record indicates that respondents timely notified the board of the commencement of this appeal and that the board appointed legal counsel to represent respondents. It is appropriate to issue a certification of good faith unless it has been established on the record that a board member acted in bad faith (Appeal of the Board of Cooperative Educational Services, Third Supervisory District, Suffolk County, 32 Ed Dept Rep 519). In light of my decision, I will issue such certificates to respondents.

Finally, respondents request attorneys' fees and costs for defending this action. It is well settled that the Commissioner of Education lacks authority to award attorneys' fees and costs in an appeal before him (Appeal of Shravah, 36 Ed Dept Rep 396 aff'dEducation Alternatives, Inc. v. Mills, Supreme Court, Albany County, Special Term, December 18, 1997).

THE APPLICATION IS DENIED.

 

IT IS ORDERED that the Board of Education of the Middle Country Central School District shall meet within 30 days of the date of this decision, at which time such board shall modify the Middle Country Central School District code of ethics to be in compliance with the findings of this decision.

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