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Decision No. 14,663

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Application of LENORE C. WILSON for the removal of David Smaczniak, Daniel Dunn, Nancy Lesakowski, Mary Busse and James Asztalos, as members of the Board of Education of the West Seneca Central School District.

Decision No. 14,663

(December 5, 2001)

Hodgson, Russ, Andrews, Woods & Goodyear, LLP, attorneys

for respondents, Karl W. Kristoff, Esq. of Counsel

MILLS, Commissioner.--Petitioner seeks the removal of respondents David Smaczniak, Daniel Dunn, Nancy Lesakowski, Mary Busse and James Asztalos, as members of the Board of Education of the West Seneca Central School District. The application must be denied.

Petitioner alleges that the five named members of the Board of Education have inappropriately used taxpayer funds to fulfill "political vendettas" and have "unilaterally, illegally and with malevolent intent" terminated a binding contract with its Superintendent of Schools, Dr. Richard Sagar.

Petitioner specifically alleges that the board began an investigation of Superintendent Sagar in May 2000, and placed him "on vacation" during the budget vote, which led "to all types of speculation." Petitioner further alleges that the public was never told directly about the investigation, but that rumors "which I know for a fact came directly from certain board members" led the public to conclude that the superintendent was being investigated for "some type of alleged sexual misconduct." Petitioner alleges that the public was never told about the results of the investigation, but that board members later told the public and press that although Superintendent Sagar did nothing illegal, there were "concerns about his behavior" and that the board's attorney later admitted that there were no complaints of misconduct in the report that could be charged against the superintendent. Petitioner alleges that respondents threatened the superintendent with a "public buyout" of his employment contract, which she speculates "would be linked in the mind of the public with the rumors of sexual misconduct" to force him to enter into an agreement terminating his employment. Petitioner further alleges that respondent Asztalos and another individual who was a board member at the time, improperly disclosed the termination agreement to a local newspaper, despite an understanding that it would be kept confidential.

In addition, petitioner alleges that on or about January 8, 2001, the board of education voted to begin a second investigation of Superintendent Sagar, regarding his prior employment at the Cazenovia Central School District, as a means of "bolstering" its decision to terminate his employment. Petitioner alleges that a member of the public, who was allegedly given confidential information about the superintendent by a former board member and respondent Asztalos, and who was allegedly acting on behalf of respondent Asztalos, instigated the second investigation by presenting the board with 11 year old newspaper clippings concerning the circumstances of the termination of the superintendent's employment at another district. Petitioner also alleges her belief that the former board member and respondent Asztalos encouraged this member of the public to contact the superintendent's ex-wife and daughter in order to obtain damaging information. Petitioner alleges that although written evidence clearly supported the superintendent's contention that he willingly resigned his prior employment with the other district, the board of education, and specifically the five named respondents, voted to immediately terminate his contract on the grounds that the superintendent committed "fraud" by allegedly stating at the time he was seeking employment with respondent's district that he was "not compelled" to leave his prior employment with the other district. Petitioner contends that respondents' actions violated the superintendent's civil and legal rights and that the investigations were a pretext to terminate his employment.

Respondents deny petitioner's allegations and contend that petitioner has failed to show that the board of education, or its individual members abused their discretion or willfully violated or neglected any duty under a provision of the Education Law or any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education. Respondents allege that the actions taken by the board had a rational basis and were taken in good faith and pursuant to the powers and duties of the board of education.

At the outset, I find that petitioner lacks standing to challenge respondents' actions as violating the superintendent's "civil and legal rights." Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law "310, and an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Kackmeister, 39 Ed Dept Rep 466, Decision No. 14,285; Appeal of Woodward, 36 id. 445, Decision No. 13,773). Petitioner has not shown that respondents' alleged violation of the superintendent's rights has caused injury or damage to her own rights. Status as a resident of a school district does not, in and of itself, confer standing to challenge a board of education's actions concerning its employees (Appeal of Sherwood, 39 Ed Dept Rep 791, Decision No. 14,382; Appeal of Craft and Dworkin, 36 id. 314, Decision No. 13,734). Therefore, the appeal must be dismissed to the extent petitioner seeks to assert the superintendent's rights. Nevertheless, petitioner has standing as a resident and taxpayer of the district to seek removal of respondent board members for alleged misconduct (Appeal of Eisenkraft, 38 Ed Dept Rep 553, Decision No. 14,092; Matter of Viviano and Karamessinis, 18 id. 263, Decision No. 9834).

Before proceeding to the merits of this appeal, I note that petitioner alleges, among other things, that respondents "unilaterally, illegally, and with malevolent intent" terminated a binding contract with the superintendent of schools. Respondents allege that the board was fraudulently induced into hiring and retaining Dr. Sagar as superintendent and, consequently, the contract was voidable and Dr. Sagar subject to discharge as an "at will" employee. However, it appears from the record that, in March 2001, Dr. Sagar filed a petition in State Supreme Court, pursuant to Article 78 of the Civil Practice Law and Rules, requesting an annulment of his dismissal as superintendent and seeking reinstatement to that position. Therefore, it would be inappropriate for me to adjudicate petitioner's allegations with respect to the propriety of the board's action to terminate the superintendent's employment contract, while there is a pending State Supreme Court action seeking review of the superintendent's dismissal (Appeal of Gauch, 40 Ed Dept Rep 247, Decision No. 14,473; Appeal of Spadone, 39 id. 638, Decision No. 14,337; Appeal of Phillips, 38 id. 165, Decision No. 14,008). Therefore, in determining whether to grant petitioner's application to remove respondents, I will not consider petitioner's allegations with respect to whether Dr. Sagar's employment was properly terminated pursuant to his employment contract.

Education Law "306(1) authorizes the Commissioner of Education to remove members of a board of education for 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, 37 Ed Dept Rep 153, Decision No. 13,830).

Petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of James L., 39 Dept Rep 482, Decision No. 14,288; Appeal of Logan, 38 id. 694, Decision No. 14,120). The burden is on the petitioner to allege and prove facts upon which relief may be granted, not on the respondents to rebut conclusory allegations (Appeal of Keiling, 25 Ed Dept Rep 122, Decision No. 11,517; Matter of Lawson, 24 id. 132, Decision No. 11,343). Furthermore, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Van Zile and Crowell, 37 Ed Dept Rep 213, Decision No. 13,846; Appeal of Distefano, 36 id. 217, Decision No. 13,705).

I find that the petitioner has failed to meet her burden of proof. The petition consists of little more than petitioner's beliefs, opinions and speculations regarding respondents' motivations in terminating the superintendent's employment with the district. Her petition contains no affidavits or other proof to establish her allegations, and her reliance on newspaper articles to prove her allegations is misplaced, since newspaper articles do not constitute evidence of the truth of the statements contained in them (Appeal of Toftegaard, 25 Ed Dept Rep 159, Decision No. 11,532; Matter of Freis, 23 id. 47, Decision No. 11,130).

Respondent James Asztalos has submitted an affidavit to refute petitioner's allegations, in which he states that during the spring of 2000, the board of education was informed of certain alleged conduct by the superintendent toward various district employees which "appeared to be inappropriate and unprofessional"; that on May 2, 2000, the district's attorneys met with the superintendent and advised him of the multiple complaints they had received from "three different, credible third parties alleging, essentially, that by certain behaviors toward young, untenured teachers he had created a hostile work environment"; that the superintendent denied any untoward conduct; that the superintendent was advised that various witnesses had stated that they felt intimidated and that any investigation should be done in the superintendent's absence; and that at a May 8, 2000 board meeting, the board authorized the district's attorneys to conduct an investigation and the superintendent advised respondent Asztalos that he would take a vacation to facilitate the investigation.

According to respondent Asztalos' affidavit, the investigation was conducted from approximately May 10 through May 22, 2000 and included interviews of more than 30 teachers and administrators. As a result of the investigation, and "numerous other concerns" about the superintendent's conduct, at a special meeting held on May 26, 2000, the board authorized its attorneys to negotiate the termination of the superintendent's employment.

The district's attorneys met with the superintendent on May 30, 2000 and reviewed a summary of the investigation's findings and a proposal from the board for his termination. Further negotiations were conducted in June 2000, including communications between the district's attorneys and the superintendent's attorney, and a June 15, 2000 special board meeting during which board members described in turn the reasons why they believed the employment relationship should cease. Respondent Asztalos further states that negotiations continued until a special board meeting held on June 30, 2000, at which time the superintendent signed, and the board approved, an agreement to terminate the superintendent's employment agreement, but authorizing him to serve as superintendent up to and including June 30, 2001.

In addition, respondent Asztalos states that in response to petitioner's subsequent commencement in Erie County Supreme Court of a proceeding pursuant to Article 78 of the Civil Practice Laws and Rules to invalidate the board's approval of the termination agreement based upon an alleged violation of the Open Meetings Law, the board, "in an effort to proactively address" the Article 78 petition, adopted a resolution at its November 13, 2000 meeting to confirm its prior action on June 30, 2000 to approve the termination agreement; the Court dismissed the Article 78 petition on March 14, 2001 upon a finding that the board's subsequent confirmation of the termination agreement had rendered the petition moot.

Respondent Asztalos further states in his affidavit that in December 2000, a district resident provided him with several newspaper articles that indicated the superintendent had left employment as the Superintendent of the Cazenovia Central School District "under pressure." The district resident brought these articles to the entire board's attention at its January 8, 2001 meeting, and the board unanimously passed a resolution authorizing its attorneys to investigate the circumstances surrounding the superintendent's employment with the Cazenovia Central School District to determine whether the superintendent had misrepresented the termination of his previous employment with that district at the time he sought employment with the West Seneca Central School District.

According to respondent Asztalos' affidavit, the investigation revealed that the Cazenovia board considered terminating Dr. Sagar but instead reached a "Separation Agreement" to allow him to resign; that at the time Dr. Sagar sought employment as superintendent with respondents' district, he had orally stated that "he had never been forced by a board to leave a district"; and that he indicated on his employment application that he had "never resigned in order to avoid discharge" or words to those effects.

Respondent Asztalos further states that although the board determined that its contract with the superintendent was voidable because of its finding that he misrepresented his previous separation from employment with the Cazenovia school district, the board was willing to discuss a negotiated agreement with the superintendent to immediately remove him as superintendent, and commenced negotiations with the superintendent and his attorney. The superintendent's attorney was provided with a proposed settlement agreement, as well as a proposed resolution to be adopted by the board at its March 19, 2001 meeting which would immediately terminate the superintendent's employment with the district. At a board meeting held on March 19, 2001, the resolution was reviewed and after Dr. Sagar was given an opportunity to respond and indicated that he would not resign nor would he sign any release, the board passed a detailed resolution terminating his employment with the district.

The resolution indicates the following as grounds for the board's termination of the superintendent's employment: (1) at the time of his application for the position of Superintendent of Schools, Dr. Sagar misrepresented to the West Seneca Central School District Board of Education the circumstances under which he left his prior employment with the Cazenovia Central School District; (2) the superintendent allegedly willfully and wrongfully recommended and caused the board to adopt a resolution to accept "an unconditional gift of $150,000," which formed part of the consideration for an unauthorized "exclusive pouring rights" contract; (3) the superintendent allegedly willfully and wrongfully entered into an unauthorized, illegal contract on behalf of the district with the Pepsi-Cola Bottling Corporation; (4) the superintendent allegedly willfully and wrongfully authorized the construction of a "Project Adventure High Elements Course" at the district's middle school, without the prior knowledge or authorization of the board; (5) the superintendent allegedly willfully and wrongfully breached his fiduciary duty to the board by his active cooperation in the prosecution of a proceeding against the board under Article 78 of the Civil Practice Law and Rules; (6) the superintendent allegedly willfully and wrongfully was absent without leave from his duties as superintendent of schools; (7) the superintendent, allegedly unilaterally and without board authorization, first appointed and then changed the compensation of the administrator of the district's summer school "Jump Start" program; and (8) "multiple additional reasons meriting the termination of his employment, which reasons a majority of this Board remains convinced are meritorious, a statement of which is attached to this Resolution."

As discussed above, the petition consists of little more than petitioner's opinions and speculations. Petitioner submits no proof to establish that the grounds specified in the March 19, 2001 resolution are baseless or otherwise without merit. Indeed, with respect to most of the grounds presented in the resolution, petitioner does not even allege, let alone prove, that such grounds are meritless.

Petitioner seeks to submit an affidavit of Dr. Sagar "to refute specific referenced statements in the affidavit of James Asztalos." Respondents object to my consideration of the affidavit on the grounds that petitioner has failed to request or receive prior permission of the Commissioner to submit the affidavit as required under 8 NYCRR "276.5 and petitioner failed to serve a copy upon respondents' attorneys as required under 8 NYCRR "275.8. Respondents further contend that even if petitioner were to claim that the affidavit is her reply, the affidavit fails to address the affirmative defenses contained in respondents' answer, in accordance with 8 NYCRR "275.14, and service of the reply is untimely pursuant to 8 NYCRR "275.14. Inasmuch as the affidavit was accompanied by a letter from petitioner stating the reason for her submission of the affidavit, I will treat petitioner's submission as an application pursuant to 8 NYCRR "276.5 for permission to submit the affidavit.

However, I must deny petitioner's application to submit Dr. Sagar's affidavit. Petitioner has failed to serve a copy of her application upon respondents' attorneys as required under 8 NYCRR "275.8(b). In addition, the affidavit sets forth certain new allegations, together with other material that "bolsters" petitioner's original allegations, and this information should have been included in the petition. Since petitioner offers no explanation as to why this material could not have been included in her petition, I will not allow such material to be submitted now for my consideration (Appeal of Mackay, 39 Ed Dept Rep 815, Decision No. 14,391). I also note that the Sagar affidavit attempts to raise certain allegations concerning Dr. Sagar's due process rights that, as discussed above, petitioner lacks standing to assert. In addition, many of the statements that the Sagar affidavit seeks to dispute involve tangential facts that are not critical to the resolution of this appeal.

Finally, since the burden is on petitioner to establish a clear legal right to the relief requested and the facts upon which petitioner seeks relief, even if I were to accept Dr. Sagar"s affidavit, petitioner would still have failed to establish that respondents engaged in any willful violation or neglect of duty under the Education Law, or any willful disobedience of any decision, rule or regulation of the Board of Regents or the Commissioner of Education (Education Law "306; Appeal of Goldin, et al., 39 Ed Dept Rep 14, Decision No. 14,158). With one exception, the Sagar affidavit merely disputes certain statements made in the Asztalos affidavit and offers no further supportive evidence to meet petitioner's burden of proof.

With respect to the exception, I acknowledge that a copy of what is alleged to be Dr. Sagar's application for the superintendent position, as appended to his affidavit, does not include any specific statement or indication by Dr. Sagar that he had never resigned any previous position in order to avoid discharge. However, the application does contain his signed statement that "willful misrepresentation of any actual fact contained in this application is cause for disqualification of my candidacy for the position or if hired or retained, dismissal from the position and loss of tenure rights." Even if Dr. Sagar did not specifically indicate on his employment application that he had never resigned a former position in order to avoid discharge, his oral statement that he had never been forced by a board to leave a district would be sufficient to support the board's finding with respect to this issue and petitioner has failed to carry her burden of proof to refute respondents' allegation that such oral statement was made. Absent such a showing, there is no basis for a finding that respondents acted improperly.

Furthermore, the employment application should have been included as an exhibit to the petition and petitioner offers no explanation as to why it could not have been included (see Appeal of Mackay, supra).

THE APPLICATION IS DENIED.

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