Decision No. 14,092
Application of KAILA EISENKRAFT for the removal of John Perillo as a trustee of the Board of Education of the Ossining Union Free School District.
Application of KAILA EISENKRAFT for the removal of Nicholas J. Caputo as a trustee of the Board of Education of the Ossining Union Free School District.
Decision No. 14,092
(March 19, 1999)
Nicholas R. Caputo, Jr., Esq., attorney for respondents
MILLS, Commissioner.--In two separate proceedings, petitioner seeks the removal of respondents John Perillo and Nicholas J. Caputo as trustees of the Board of Education of the Ossining Union Free School District. Because the applications are based on the same facts, they are consolidated for decision. The applications must be denied.
Petitioner alleges that respondents violated their duties as trustees by disseminating allegedly deceptive information concerning the 1997-98 school district budget. Petitioner also alleges that respondent Caputo violated his duties as trustee by improperly revealing matters discussed by the board of education in executive session. Petitioner requests that I either fine, suspend or remove respondents from their positions as board trustees.
Respondents deny petitioner's allegations and raise several affirmative defenses. Respondents contend that the applications are untimely, that the petitions each fail to contain a clear and concise statement of petitioner's claim showing that petitioner is entitled to the relief sought, that petitioner lacks standing to bring the appeals, that petitioner has failed to properly serve respondents, that petitioner has failed to join the other board trustees as necessary parties, that petitioner has failed to verify the petition, and that the petitions are moot.
Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be instituted within 30 days from the making of the decision or the performance of the act complained of. That requirement also applies to applications made pursuant to Education Law "306 (8 NYCRR "277.1; Application of Eagelfeld, 36 Ed Dept Rep 186). Petitioner alleges that at a meeting of the board of education held on April 9, 1997 respondent Caputo improperly disclosed confidential information presented during an executive session of the board. Petitioner also alleges that respondent may have improperly disclosed information from an executive session of the board to the press. While petitioner fails to provide the date when such act may have occurred, she bases her allegation on a May 21, 1997 letter from the school district attorney to the board, which was read into the public record at a board meeting held on May 28, 1997. Therefore, such act had to have occurred sometime prior to May 21, 1997. The letter refers to certain evidence, including an article that appeared in a local newspaper on March 27, 1997, which suggests that respondent Caputo's alleged release of information to the press occurred on or before that date. Petitioner does not include in her applications a copy of the newspaper article or any of the other evidence referred to in the attorney's letter.
Petitioner further alleges that "on or about May 1997" respondents purchased allegedly deceptive advertising relating to a school district vote held on May 7, 1997, which appeared at least three times in a local newspaper. Petitioner also alleges that "on or about May 1997" respondents posted an allegedly deceptive sign in the town, which contained the same message as the newspaper advertising. Petitioner does not state the specific dates the newspaper advertising appeared although it appears from the record that one of the advertisements appeared in the May 4, 1997 edition of the newspaper. Since the advertisements pertain to the May 7, 1997 election, I presume that the other two advertisements appeared no later than May 7, 1997. With respect to the posted sign, petitioner alleges that such sign remained on display until June 6, 1997. Since petitioner's allegations relating to the advertisements and the sign concern a series of events closely related to the May 7, 1997 election, the 30 days, for purposes of "275.16 is to be measured from the date of the election (Appeal of Rampello, 37 Ed Dept Rep 153).
Petitioner commenced her applications on July 23, 1997, which is more than 30 days from the acts complained of. However, section 275.16 of the Commissioner's regulations provides that I may, in my sole discretion, excuse petitioner's failure to commence within the time specified for good cause shown.
Petitioner contends that she believed that a May 28, 1997 letter that she sent to my Office concerning respondents' alleged violations of their duties as trustees constituted a petition pursuant to Education Law "306. It appears from the record that by letter dated June 9, 1997, my staff informed petitioner of the requirements for filing a formal application pursuant to Education Law "306. On June 23, 1997, petitioner served copies of her petitions on each respondent. However, by letter dated July 9, 1997, petitioner was informed by my staff that her petitions were being returned as defective. Petitioner served respondents with her corrected petitions on July 23, 1997. In view of the facts that petitioner is proceeding prose, that petitioner took expeditious actions upon notification to remedy defects in her applications, the relatively short length of time that has passed with respect to such allegations, and in the absence of any demonstrable prejudice to respondents, I will excuse the late filing of her applications as to petitioner's allegations concerning the advertisements and the posting of the sign.
However, petitioner's allegations relating to the disclosure of confidential information at the April 9, 1997 meeting were untimely even at the time of petitioner's May 28, 1997 letter, and therefore must be dismissed. With respect to petitioner's allegations that respondent Caputo improperly disclosed confidential information discussed by the board in executive session to the press, petitioner does not provide any date or approximate date when such acts allegedly occurred. Indeed, petitioner does not even allege that such acts did, in fact, occur, but merely states that the school attorney's letter of May 21, 1997 refers to evidence "which suggests that the respondent [Caputo] released information to the press about matters discussed in executive session." Petitioner has not submitted any further information in her reply to clarify the timeframe concerning this allegation. The burden of proof is on petitioner to establish the facts upon which she seeks relief (8 NYCRR ""275.10 and 277.1; Application of Sabuda and Chudzik, 31 Ed Dept Rep 461). Accordingly, I will not excuse the untimeliness of such allegations.
Furthermore, petitioner's allegations with respect to respondent Caputo's alleged improper release of information to the press are not sufficiently stated in the petition and therefore must also be dismissed pursuant to 8 NYCRR ""275.10 and 277.1, which require the petition to contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to the relief sought. Petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (Appeal of Pulvermacher, 36 Ed Dept Rep 333). Again, petitioner merely speculates that respondent Caputo may have provided such information to the press. However, I find that petitioner's remaining allegations concerning the advertisements and the sign posting, and the relief sought, are sufficiently stated in the petition so that respondent was able to provide an adequate response. Accordingly, I decline to dismiss such allegations as in violation of 8 NYCRR "275.10.
Respondents further contend that the applications should be dismissed for petitioner's alleged lack of standing to bring the appeal. However, petitioner has standing as a resident and taxpayer of the district to seek removal of respondent board members for alleged misconduct (Matter of Viviano and Karamessinis, 18 Ed Dept Rep 263).
Respondents also contend that the applications should be dismissed for petitioner's failure to join the other board trustees as respondents. However, petitioner is required to join as a necessary party only those whose rights would be adversely affected by a determination in favor of petitioner (Application of Deitz, 35 Ed Dept Rep 261). Since petitioner seeks only to remove respondents and does not seek any relief against the other board trustees, the latter are not necessary parties to petitioner's applications (Appeal of Foshee, 38 Ed Dept Rep 346).
Respondents further contend that the applications should be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Douglas and Judy H., 36 Ed Dept Rep 224; Appeal of Lovelock, 36 id. 2). However, because respondents continue to hold office as members of the board, petitioner's charges seeking their removal are not moot (Application of Dinan, 36 id. 370).
I find no merit to respondents' contention that petitioner has failed to properly serve them with the petitions. Respondents fail to specify the nature of the allegedly improper service. Furthermore, while as discussed above, the initial service of the petitions upon respondents was defective, the record indicates that the petitions were subsequently properly served on respondents.
Respondents' contention that petitioner failed to verify her petitions is also without merit. Sections 275.5 and 277.1 of the Commissioner's regulations require that all pleadings be verified. Sections 275.9 and 277.1 of the regulations require petitioner to file with the Office of Counsel an affidavit of verification together with the original petition. The record indicates that separate affidavits of verification were filed for each of the two petitions. While it appears that respondents' copies did not include copies of the verifications, such omission is not sufficient to require that I dismiss the applications (Appeal of a Student with a Disability, 37 Ed Dept Rep 70, Appeals of Moravia Teachers' Association, 36 id. 413).
Education Law "306(1) authorizes the Commissioner of Education to remove a member of a board of education for a willful violation or neglect of duty under the Education Law or willful disobedience of any decision, rule or regulation of the Board of Regents or the Commissioner of Education. An application seeking removal must set forth the willful violation of law, neglect of duty, or willful disobedience of a decision, order or regulation charged against the board member and the facts by which it is established (8 NYCRR "277.1(a)). To be considered willful, respondents' actions must have been intentional and with a wrongful purpose (Appeal of Rampello, supra). Furthermore, Education Law "306 only authorizes the Commissioner of Education to remove a board member from office. There is no provision in "306 or elsewhere in the Education Law that authorizes the Commissioner to fine or suspend a board member.
Petitioner alleges that respondents breached their duties as board trustees by placing misleading advertisements that appeared at least three times in a local newspaper, and posting a sign in town containing the same information.
The advertising and sign consisted of the statement "They say it's for our Children?"; followed by a listing of the dollar amount of what purports to be the sum of the salaries, pension and other benefits for the superintendent of schools and two assistant superintendents; followed by the statements "Vote YES to INCREASE Salaries", "Vote NO to "Send a Message" and information on the place, date and time of the vote; and ending with the statement "Paid for by Members of the Ossining School Board" and a phone/fax number.
Petitioner contends that respondents violated their duties as school board trustees to provide sufficient, complete and factual information to district voters so as to enable them to intelligently exercise the franchise. Petitioner contends that since administrative salaries are fixed by contract, it is misleading for the advertisements and the sign to suggest that administrative salaries are affected by voter approval of the school budget. Petitioner also alleges that it was misleading for respondents to state that the advertisements and sign were paid for by "Members of the Ossining School Board" since it created the false impression that the message conveyed reflected the views of the board of education as a whole.
Upon my review of the record, I find that petitioner has failed to establish a violation of Education Law "306 so as to warrant the removal of respondents as trustees of the board of education. The record indicates that the advertisements and the sign were paid for and placed by respondents as expressions of their personal opinions. While it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Application of Dinan, supra), individual board members are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used (Application of Dinan, supra; Appeal of Carroll, 33 id. 219; Appeal of Weaver, 28 id. 183). The record indicates that the newspaper advertising was paid for by respondents and that no district funds were involved in the publication of the advertisements and the posting of the sign. While the message conveyed in the advertising and sign, "Vote YES to INCREASE Salaries" – "Vote NO to 'Send a Message'", may be technically incorrect to the extent that such salaries may be fixed by contract and are therefore unaffected by the school vote, I find such message to be within the bounds of legitimate partisan comment. Accordingly, petitioner has failed to establish that respondents acted intentionally and with a wrongful purpose in the publication and posting of such message.
However, I am disturbed by the accompanying statement that the message was "Paid for by Members of the Board of the Ossining School Board." Such statement is at least potentially misleading to the extent it suggests that the message conveyed is sanctioned or otherwise approved by the board of education, as a corporate body. While I do not find respondents' actions in placing such statement sufficient to warrant their removal, I admonish respondents to refrain in the future from using such statement in any partisan expression of their personal opinions on school district issues.
THE APPLICATIONS ARE DENIED.
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