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Decision No. 13,939

Application of RONALD V. SANTICOLA for the removal of Joseph Pezak, as Superintendent of Schools, and David Kukle, Gail Hommel, Barbara Showers Browne, Gerry Loucks, and JoEllen Schermerhorn, as members of the Board of Education of the Hunter-Tannersville Central School District.

Decision No. 13,939

(May 13, 1998)

Hogan & Sarzynsky, LLP, attorneys for respondent, Edward J. Sarzynsky, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Joseph Pezak, as superintendent, and David Kukle, Gail Hommel, Barbara Showers Browne, Gerry Loucks, and JoEllen Schermerhorn, as members of the Board of Education of the Hunter-Tannersville Central School District for alleged misconduct with respect to a prior appeal. The application must be denied.

Petitioner claims that respondents committed perjury in the course of executing and filing an answer in a previous appeal, Appeal of Santicola (37 Ed Dept Rep 79). In that appeal, which dealt with a modification of transportation arrangements, petitioner filed a petition which contained the following allegations, respecting the claimed failure of the board to vote on transportation changes:

10. The petitioner has been unable to produce any evidence that respondent Pezak in any way consulted with any of those utilizing the general contract prior to his actions, or that he consulted with any member of the Board of the respondent District prior to his actions, or that he had authorization for his actions by way of an affirmative Board action prior to his actions.

13. On February 27, 1997, the respondent District conducted a regular meeting without addressing the petitioner's request to affirmatively nullify respondent Pezak's actions, which failure to nullify respondent Pezak's actions hereinafter the petitioner will refer to as respondent District's omission.

14. On February 28, 1997, the respondents activated respondent Pezak's replacement contract, still without having consulted with any of those utilizing the general contract, still without having consulted with the petitioner regarding the specific contract, and still without the respondent District's having voted an affirmative action to authorize the replacement contract, which activation by the respondents hereinafter the petitioner will refer to as the respondents' activating action.

In that same earlier appeal, the school district and Joseph Pezak filed an answer which contained the following paragraphs:

2. The following facts are set forth to deny the allegations set forth in the Petition.

10. Respondents deny all other allegations of the Petition which are not specifically admitted in this Answer.

Petitioner quotes the following language from my decision in that prior appeal: "Although petitioner claims . . . that the board should have voted affirmatively to change the arrangements . . . ." (Appeal of Santicola, supra at p.81). In the instant appeal petitioner argues that this language proves that the board did not conduct a vote. Petitioner concludes that respondent Pezak committed perjury in the prior appeal by verifying the answer, and allegedly denying that there was no vote to make the change in transportation that petitioner challenged. He further claims that the other respondents were in possession of all relevant documents in the prior appeal, but failed to report the superintendent's alleged perjury to the Commissioner, as he says they are required to do under Education Law "1804, and that they are also accomplices to perjury.

In fact, the full sentence in Acting Commissioner Cate's prior decision which petitioner has quoted in part, reads: "Although petitioner claims that all parents whose children used the service should have been consulted, that the board should have voted affirmatively to change the arrangements, and even that a majority of those parents whose children used the service were required to consent to the change, he has cited no authority for these propositions." Appeal of Santicola, supra at p.81.

Education Law "306 allows the Commissioner of Education to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer where such person has been guilty of any willful violation or neglect of duty under the Education Law, or any other act pertaining to common schools or other educational institution participating in State funds, or willfully disobeying any decision, order, rule or regulation of the Regents or the Commissioner of Education. Based upon the pleadings quoted above, and the statement in Decision No. 13,809, petitioner concludes that respondents are guilty of violating Penal Law ""210.35 (making an apparently sworn false statement in the second degree, a class A misdemeanor) and 210.45 (making a punishable false written statement, a class A misdemeanor). Petitioner makes no claim that respondents have violated any provision of the Education Law or that they have willfully disobeyed any decision, order, rule, or regulation of the Regents or Commissioner of Education.

The application must therefore be denied. Petitioner has neither alleged nor proven any violation of Education Law "306.

THE APPLICATION IS DENIED.

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