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Decision No. 14,319

Application of MICHAEL J. CIMINO for the removal of Josephine Reder, Rhona Vitagliano, Michael Davis, Tom Dolise, Ellen Ryder, Keith Wilson, and Maryanne Karageorges, as members of the Board of Education, and Gene Grasso, as Superintendent of Schools of the Plainedge Union Free School District.

Decision No. 14,319

(March 3, 2000)

Ingerman Smith, L.L.P., attorneys for respondents, Warren H. Richmond, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal from office of the members of the Board of Education and the Superintendent of Schools of the Plainedge Union Free School District ("respondents") due to alleged violations of the Education Law, General Municipal Law and New York State Constitution. The application must be sustained to the extent indicated.

Petitioner alleges that respondents illegally constructed and equipped a board room in the district’s high school for $79,231.40. Specifically, petitioner contends that respondents expended public monies without voter approval, failed to comply with the competitive bidding requirements of the General Municipal Law and failed to publicly adopt a board resolution authorizing the construction of the board room. In addition, petitioner claims that the expenditures for the purchase of computers, computer desks and online service for home use by board members constitutes an unconstitutional gift of public funds.

Respondents argue that all actions were taken in good faith and in furtherance of legitimate district interests. In his affidavit, respondent superintendent states that it was his determination that the project was essentially a maintenance project, and assumes sole responsibility for the decision to fund the project out of the operations and maintenance budget rather than as a capital project. He also accepts full responsibility for the decision that it was not subject to the competitive bidding requirements of the General Municipal Law. He further maintains that respondent board had absolutely no involvement in the project.

In an appeal to the Commissioner of Education, petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which he or she seeks relief (Application of Goldin, et. al., 39 Ed Dept Rep 14, Decision No. 14,158; Application of Bushman, et al., 37 id. 576, Decision No. 13,931; Appeal of Marek, 35 id. 314, Decision No. 13,554). Education Law "306 authorizes the Commissioner of Education to remove a superintendent of schools as well as a member of the board of education for a "wilful violation or neglect of duty" (Education Law "306(1); Appeal of Rampello, 37 Ed Dept Rep 153, Decision No. 13,830; Application of Brousseau, 35 id. 291, Decision No. 13,545; Application of Cobler, 35 id. 176, Decision No. 13,506). To be considered wilful, respondents’ actions must have been intentional and with a wrongful purpose (Appeal of Rampello, supra; Application of Cobler, supra). Mere negligence on the part of a school officer is not enough to warrant removal (Application of Brennan, 35 Ed Dept Rep 214, Decision No. 13,520; Appeal of Schofield, 34 id. 143, Decision No. 13,263).

There is no dispute that the project at issue was funded out of the operations and maintenance budget, rather than as a capital project. The issues presented are whether this was appropriate, and, if not, whether respondents' actions warrant removal.

According to the record, the project involved the conversion of an electrical shop to a board room, requiring interior construction, installation of bathrooms, electrical work, installation of an air conditioning unit and the installation of ceiling light fixtures. Maintenance is recurring work intended to promote the upkeep of a property for purposes of ensuring proper operating condition. In contrast, reconstruction means to rebuild, renovate or remodel an existing school building (see, State Education Department’s Office of Facilities Planning Bulletin on State Building Aid for Public School Districts and BOCES, April 1999). Based on the record before me, I find that respondent superintendent erred in his determination that the project at issue was a maintenance project. The nature and scope of the work necessary to convert the electrical shop to a board room clearly demonstrates that the project was a reconstruction project that should not have been funded out of the district’s operations and maintenance budget, but rather should have been treated as a capital project.

The record also demonstrates violations of the General Municipal Law. Article 5-A of the General Municipal Law contains the competitive bidding requirements applicable to school districts throughout the state. Section 103 provides that, unless another statutory provision provides an exception, all contracts for public work involving an expenditure of more than $20,000 and all purchase contracts involving an expenditure of more than $10,000 are subject to competitive bidding (General Municipal Law "103). In addition "101 contains competitive bidding requirements with respect to contracts for the erection, construction, reconstruction or alteration of a building, when the entire cost will exceed $50,000. In such cases, "101 requires the preparation of separate specifications for: (1) plumbing and gas fitting; (2) steam heating, hot water heating, ventilating and air-conditioning apparatus; and (3) electric wiring and standard illuminating fixtures. The specifications must be drawn to permit separate and independent bidding on each of the three categories of work (General Municipal Law "101; 1999 Opns St Comp No. 99-2).

The record indicates that the cost of the capital project exceeded $50,000. Therefore, I find that respondents violated the competitive bidding requirements of the General Municipal Law by failing to bid the reconstruction work.

The record on the purchase of furniture is less clear. It is not apparent whether the furniture purchased for the new board room was of the same or similar nature and is customarily handled by the same vendor as compared to other furniture which may have been purchased by respondents during the fiscal year. Therefore, I am unable to determine whether it should have been included in determining whether the monetary threshold had been met and whether competitive bidding was required (1991 Opns St Comp No. 91-64; 1992 Opns St Comp No. 92-46). In any event, "104-b requires school districts to adopt internal policies and procedures governing all procurements of goods and services that are not required to be made pursuant to competitive bidding requirements (General Municipal Law "104-b[1]). Except in limited circumstances, the policies and procedures must provide that alternative proposals or quotations will be secured (General Municipal Law, "104-b[2][b],[f]). Accordingly, even if the procurement of goods and services is not required to be made pursuant to competitive bidding requirements, it must be made in accordance with the district’s procurement policies and procedures (1992 Opns St Comp No. 92-46). It is not clear from the record whether respondent board has such internal policies and procedures in place, and, if so, whether they were followed in the purchase of the new board room furniture. I remind respondents of their obligation to promulgate such policies and procedures and to follow them where competitive bidding is not required.

Furthermore, pursuant to the regulations of the Commissioner of Education, a school district is required to submit plans and specifications for a proposed project to remodel school district facilities to the Department when the contemplated costs of such project are $10,000 or more, and for all projects affecting the health and safety of students (8 NYCRR "155.2). No such documents were filed with the Department pertaining to the project at issue. Therefore, I find that respondents failed to adhere to the regulations of the Commissioner of Education, and direct respondent to submit the required documents to the Office of Facilities Planning for a health and safety review.

Finally, based on the record before me, I find meritless petitioner’s contention that respondents illegally expended public monies for computer equipment and Internet service for home use by respondent board members. Article VIII, "1 of the New York State Constitution prohibits a gift or loan of public property to any individual or private entity (Application of Schmucker, 32 Ed Dept Rep 643, Decision No. 12,942). Respondents state that the district retains ownership of the property, which is to be returned to the district at the expiration of an individual board member’s term. Respondents further maintain, and petitioner does not refute, that the computers are used to enhance communication on school district matters between the district and board members. There is no evidence in the record that they are being used for nondistrict matters. Therefore, based on the record before me, I do not find the expenditure unlawful.

Removal from office is a drastic remedy that should be taken only in extreme circumstances (Application of O’Connor, 21 Ed Dept Rep 105, Decision No. 10,613). Serious violations of law and policy have occurred in this matter. However, there is no evidence that respondent board members willfully violated the law. Rather, the superintendent takes full responsibility for all decisions that lead to statutory violations, and indicates that the board had no involvement in these decisions. Even if board members should have been involved, any alleged neglect does not appear to have been willful. Thus, there is no basis to remove the board.

However, I am very concerned about the superintendent's actions. His experience as a school business official would suggest that such "misjudgments" should not occur. While there is no evidence that respondent superintendent acted in bad faith, questions remain about how so many "mistakes" occurred. Because, however, the construction itself, although improperly authorized, is not unreasonable and will result in a substantial and continuing benefit to the district and because there is no evidence of bad faith, I decline to exercise my power of removal (Appeal of Steflovich and Stephan, 7 Ed Dept Rep 76, Decision No. 7,827). However, the superintendent and the board members that oversee him should be absolutely scrupulous in their future compliance with the law, as additional violations of these kind may well subject them to removal from office (Appeal of Brennan, supra).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents submit the plans and specifications, including addenda and change orders, related to the project at issue in this appeal to the Office of Facilities Planning of the State Education Department within 10 days of the date of this decision.

END OF FILE