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Decision No. 14,590

Application of MICHAEL DULKIEWICZ for the removal of David Smaczniak, Daniel Dunn, Nancy Lesakowski, Mary Busse, Elizabeth Murphy and James Asztalos, as members of the Board of Education of the West Seneca Central School District.

Decision No. 14,590

(June 27, 2001)

Hodgson, Russ, Andrews, Woods & Goodyear, L.L.P., attorneys for respondent, Karl W. Kristoff, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to remove six members of the Board of Education of the West Seneca Central School District because of alleged violations of the Open Meetings Law and misuse of taxpayer funds. The application must be denied.

Petitioner alleges respondents held meetings on May 8, June 30 and November 13, 2000 and January 8, 2001 regarding the conduct of Dr. Richard Sagar, the district"s superintendent, in violation of the Open Meetings Law. Petitioner also alleges that respondents misused taxpayer funds in the course of their investigation of Dr. Sagar. Petitioner seeks to remove respondents from their respective offices.

Respondents argue that this appeal is untimely and that the Commissioner lacks jurisdiction over violations of the Open Meetings Law. Respondents contend that all special meetings regarding the employment status of Dr. Sagar complied with the notice requirements of the Open Meetings Law. Respondents also contend that petitioner has not established that the board or its individual members abused their discretion or willfully violated or neglected any duty under the Education Law, or rule or regulation of the Regents or Commissioner of Education. In addition, respondents assert that petitioner failed to join the named board members as necessary parties to this action.

The application must be denied for failure to join the individual board members as parties. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Holliday, 40 Ed Dept Rep ___, Decision No. 14,549; Appeal of Armella, 40 id. ___, Decision No. 14,525; Appeal of Majka, 40 id. ___, Decision No. 14,497). Such individual must be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Heller, 38 Ed Dept Rep 335, Decision No. 14,048). Since a decision in favor of petitioner would affect respondents" status on the board, they are necessary parties to this proceeding. As such, petitioner was required to name all six of the aforementioned board members as respondents and personally serve them with a copy of the petition and notice of petition (8 NYCRR "275.8; Appeal of Holliday, supra). In this case, petitioner did not name or serve the individual board members. Accordingly, the application must be denied.

The application must also be denied as untimely. An appeal to the Commissioner pursuant to Education Law "310 or an application pursuant to Education Law "306 must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR ""275.16 and 277.1). An application for removal pursuant to "306 may also be timely commenced within 30 days of the petitioner"s good faith discovery of the alleged conduct or misuse of funds, even though the actual conduct occurred more than 30 days before the application was instituted (Appeal of Leman, et al., 39 Ed Dept Rep 407, Decision No. 14,274; Matter of Appeal against BOCES, Third Supervisory District, Suffolk County, 32 id. 519, Decision No. 12,905). Petitioner does not allege that any delay occurred in the discovery of respondents" conduct. The alleged violations of the Open Meetings Law occurred on May 8, June 30 and November 13, 2000 and January 8, 2001, yet petitioner did not commence this appeal until March 15, 2001, more than 30 days after the meetings occurred. Consequently, I find the appeal untimely.

Finally, the application must be denied because the gravaman of petitioner"s complaint relates to alleged improper meetings of the board, a matter squarely within the ambit of the Open Meetings Law. Public Officers Law "107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Application of Lilker, 40 Ed Dept Rep ___, Decision No. 14,486; Appeal of Instone-Noonan, 39 id. 413, Decision No. 14,275; Appeal of Goldin, 38 id. 317, Decision No. 14,043). Therefore, the application must be denied for lack of jurisdiction.

In light of this disposition, I need not address the parties" remaining contentions.

THE APPLICATION IS DENIED.

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