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Decision No. 14,785

Appeal of ANDREW GILL from action of the Board of Education of the Wyandanch Union Free School District and Rodney Bordeaux, Edna Newton, Henry Bacon, Phyllis Henry and Derrick Hardy, trustees, regarding his removal as a trustee.

Appeal of SAMUEL BURNETT from action of the Board of Education of the Wyandanch Union Free School District and Rodney Bordeaux, Edna Newton, Henry Bacon, Phyllis Henry and Derrick Hardy, trustees, regarding his removal as trustee.

Decision No. 14,785

(August 22, 2002)

Law Offices of Thomas F. Liotti, attorneys for petitioner Gill, Thomas F. Liotti, Esq., of counsel

Law Offices of Thomas F. Liotti, attorneys for petitioner Burnett, Mark Feldman, Esq., of counsel

Van Nostrand & Martin, attorneys for respondents, David S. Desmond, Esq., of counsel

MILLS, Commissioner.--In separate appeals, petitioners appeal the decision of the Board of Education of the Wyandanch Union Free School District ("respondent board" or "board") removing them as trustees for official misconduct. Because the appeals involve common issues of fact and law they are consolidated for decision. The appeal of Burnett must be sustained and the appeal of Gill must be dismissed.

Petitioners were elected to respondent board in May 2001 and assumed office on July 1, 2001. At a March 22, 2002 special meeting, respondent board voted to prefer charges of official misconduct against petitioners. In separate complaints, respondent board charged petitioners Gill and Burnett with ten and six counts of misconduct, respectively. The complaint against petitioner Gill alleged that he disrupted an August 14, 2001 board meeting by referring to the meeting chair as an "idiot" (charge 1); that he interfered with the board"s ability to function at its February 26, 2002 meeting by referring to the chair as a "thug and gangster" (charge 2); that at the board"s October 16, 2001 meeting, in response to a discussion about attending the board"s retreat, Gill stated "" we ain"t going nowhere with these niggers" (charge 3); and that during a taped interview for public television aired on October 18, 2001, Gill falsely or recklessly stated that the roof of a school building was in danger of falling down (charge 4). The complaint further alleged that on February 8, 2002, Gill used a district vehicle without authorization (charge 5); that on March 6, 2002, Gill used district property to conduct a meeting after notice was posted that the meeting had been cancelled (charge 6); that while representing that he was acting on behalf of the board at a February 7, 2002 meeting at the Wyandanch Ambulance Corp., Gill threatened to use physical force and used obscene language against a taxpayer, yelling ""you are an uneducated Negro" (charge 7); that acting in his capacity as a trustee, on February 26, 2002, Gill admitted that he had called the taxpayer names worse than an "uneducated Negro" (charge 8); and that on November 10, 2001, he solicited a parent to bring false charges of sexual misconduct against a district employee (charge 9). Finally, the complaint alleged that during the week of January 28, 2002, while acting in his official capacity as a trustee, Gill inspected school district buildings and interviewed staff without board authorization (charge 10).

The complaint against petitioner Burnett alleged that during a taped interview for public television aired on October 18, 2001, petitioner falsely or recklessly stated that the roof of a school building was in danger of falling (charge 1); that on February 8, 2002, he used a district vehicle without authorization (charge 2); that on March 6, 2002, he used district property to conduct a meeting after notice was posted that the meeting had been cancelled (charge 3); that on November 10, 2001, he solicited a parent to bring false charges of sexual misconduct against a district employee (charge 4); during the week of January 28, 2002, while acting in his official capacity as a trustee he inspected school district buildings and interviewed staff without board authorization (charge 5); and that on March 7, 2002 he threatened, harassed and intimidated the district clerk to include a record of an alleged incident from the February 26, 2002 board meeting into the minutes for personal gain (charge 6).

Respondent board conducted a joint hearing on the charges over several days, commencing on April 11, 2002 and concluding on June 3, 2002. On the first three dates, petitioners were represented by Mr. Liotti. At the May 16, 2002 session, Mark Feldman, an attorney associated with Mr. Liotti"s office, assumed the role of counsel for petitioner Burnett, with Mr. Liotti continuing to represent petitioner Gill. Shortly after the start of the June 3, 2002 session, petitioners and their attorneys left the hearing under protest, claiming, among other things, that petitioners were being denied due process and access to the record. After presenting the remainder of its proof in petitioners" absence, respondent board deliberated on the charges, sustaining charges 3, 4, 6, 7, 8 and 10 against Gill and charges 2, 3, 5 and 6 against Burnett. Respondent board then voted to remove both for official misconduct.

Petitioners initially attempted to challenge their removal by commencing an Article 78 proceeding in Supreme Court, Suffolk County. By Order to Show Cause dated June 11, 2002, the Supreme Court issued a temporary restraining order prohibiting respondent board from appointing successor trustees to fill petitioners" positions. By order dated June 18, 2002, the Supreme Court extended its June 11, 2002 order pending the outcome of petitioners" Article 78 proceeding. On June 26, 2002, petitioners commenced these appeals challenging their removal. Their request for interim relief was denied July 12, 2002 based on the pendency of their Supreme Court challenge. By letter dated August 1, 2002, petitioners withdrew their Supreme Court challenge, apparently electing to challenge their removal in these appeals.

Petitioners claim that respondents Hardy, Henry, Newton and Bordeaux instituted charges of official misconduct in bad faith simply because petitioners are their political adversaries. They claim that these four respondents illegally removed them from their duly elected positions so that they would retain political control over respondent board. In support of that position, petitioners point out that the charges were presented against them at the March 22, 2002 special meeting without any prior discussion at a board meeting of petitioners" alleged misconduct or the need for removal proceedings. They also allege that respondent board never formally authorized the drafting of charges against them. Petitioners further contend that the hearing was conducted in violation of their due process rights, claiming, among other things, that respondent board did not respond to their discovery demands, that they were prevented from accessing documents necessary for their defense, that the chair of the removal proceeding did not rule on counsels" objections, that the hearing was improperly held in executive session over their objection; and that the stenographer was directed not to include the objections and comments of petitioners and their attorneys in the record.

Petitioners also complain that at the June 3, 2002 hearing session, respondent board refused to allow members of the public to speak and directed them to leave the premises. Petitioners claim that respondent"s actions "compelled" them to leave the hearing on June 3, 2002. They further allege that they were improperly denied the opportunity to present their case and to cross-examine witnesses, including the superintendent of schools, who testified on June 3, 2002 after they had left the hearing.

Petitioners further claim that the charges alleged do not constitute official misconduct. In addition, Burnett alleges that trustee Bordeaux was required to recuse himself from the hearing because criminal charges were pending against him for allegedly assaulting Burnett at a February 26 board meeting. For relief, petitioners request that they be reinstated to their positions.

Respondents claim that petitioners were provided with a full and fair opportunity to refute the charges and were properly removed from office for official misconduct. Respondents also claim that petitioners" attempt to present evidence in their defense is untimely because they were required to refute the charges at the hearing from which they voluntarily absented themselves. Respondents also assert that the petitions should be dismissed because petitioners have elected to challenge their removal by commencing an Article 78 proceeding in Supreme Court.

Preliminarily, I note that respondents" claim that the petitions should be dismissed because petitioners have commenced a proceeding in Supreme Court has been rendered moot by petitioners" withdrawal of their Article 78 proceeding.

Pursuant to Education Law "1709(18), the board of education of every union free school district has the power, among other things, "[t]o remove any member of their board for official misconduct." A written copy of the charges must be served at least ten days before the hearing and the trustee must be "allowed a full and fair opportunity to refute such charges before removal" (Education Law "1709[18]). On the record before me, I find that petitioners were afforded sufficient due process to satisfy this standard.

The record reflects that petitioners were served with copies of the charges on April 11, 2002 and that the first hearing date was not held until April 30, 2002, more than ten days after petitioners" receipt of the charges. Further, I find that the charges were sufficiently detailed to apprise petitioners of the conduct that would be at issue at the hearing. I do not find that petitioners were deprived of due process by respondent board"s failure to respond to their discovery requests. Petitioners cite no statutory or constitutional right to formal discovery in a removal proceeding conducted pursuant to Education Law "1709(18). So long as petitioners receive adequate notice of the charges, due process is served.

I also find that petitioners were afforded a full and fair opportunity to refute the charges. The hearing record reflects that petitioners were permitted the opportunity to cross-examine the hearing witnesses, examine respondent board"s documentary evidence, and introduce their own documentary evidence. Although petitioners complain that they did not have an opportunity to question the witnesses who testified at the June 3, 2002 hearing, or present a defense, I find that petitioners in fact had the opportunity to do so, but voluntarily forfeited it by leaving the hearing under protest. Although petitioners claim that they were forced to leave the hearing because of various deficiencies in the process, I find nothing in the record to justify petitioners" course of action. Petitioners" claim that they were denied access to the record is belied by the hearing transcript, which is replete with countless objections and comments by counsel. Although the hearing chair did state on June 3, 2002, that petitioner Gill"s comments would not be included in the record, I do not find any due process violation inasmuch as petitioner was represented by counsel and there is no evidence that counsel was denied access to the record. Moreover, petitioners fail to specify the comments or objections they were not permitted to place on the record, or explain how this alleged denial denied them the opportunity to refute the charges.

I also find no merit to petitioners" claim that they were denied access to documents needed for their defense because they were prevented from accessing the district clerk"s office on June 3, 2002. Petitioners were served with the charges as early as April 11, 2001. They had more than sufficient opportunity to gather evidence in their defense before June 3, 2002. Moreover, petitioners have failed to specify the documents they allegedly were unable to obtain, nor do they demonstrate how those documents would have aided their defense.

Finally, although the circumstances under which the misconduct charges were drafted are unclear, at a special meeting held March 22, 2002, a majority of respondent board voted to prefer charges against petitioners. Accordingly, I find that respondent board had the requisite authority to proceed against petitioners on misconduct charges.

To constitute grounds for removal pursuant to Education Law "1709(18), the "official misconduct" must clearly relate to a board member"s official duties, either because of the allegedly unauthorized exercise of the member"s powers or the intentional failure to exercise those powers to the detriment of the school district (Appeal of Balen, 40 Ed Dept Rep 479, Decision No. 14,532; Appeal of Cox, 27 id. 353, Decision No. 11,973). School board members are local officials who take an oath of office to exercise their duties. School boards have the duty and authority to adopt policies, rules and bylaws to discharge their duties, which include educational standards, budget matters, management issues and health and safety rules that secure the best educational results for students in their charge. To that end, a board member has a duty to proceed with constructive discussions aimed at achieving the best possible governance of the school district (Appeal of Kozak, 34 Ed Dept Rep 501, Decision No. 13,396). Moreover, a board member has a responsibility to comport himself properly and set an example for the student body (Appeal of Kozak, supra).

Based on my careful review of the record, I do not find sufficient proof to establish grounds for petitioner Burnett"s removal. I will address each of the charges inseriatim. With regard to charge 2, it appears from the record that petitioner used a district vehicle to attend to official out-of-town business on February 8, 2002. Although the complaint charges that petitioner did not obtain proper authorization, respondent did not clearly establish the district"s approval procedure for using a district vehicle. However, even assuming that petitioner neglected to obtain proper authorization, I do not find that such conduct constitutes either a neglect of duty or unauthorized exercise of authority sufficient to warrant his removal. I find the evidence similarly deficient with respect to charge 3. The record establishes that on March 4, 2002, respondent board"s president and vice-president issued a memorandum to petitioners indicating that a poll of board members" availability for a March 6, 2002 special meeting indicated that there would not be a quorum. Nevertheless, petitioners apparently went to the school building on the evening of March 6, 2002 but left ten to twenty minutes after being told by a school security officer that the meeting had been cancelled. There is nothing in the record to indicate that petitioners conducted official board business that evening. Thus, I find respondent board"s proof insufficient to establish official misconduct on this charge. With respect to charge 5, the record establishes that on one occasion, petitioners toured a school building with an official from another school district without obtaining board approval. Individual board members have no authority to act for the board unless official action has been taken by the board designating an individual member as the representative of the board for a particular purpose. This principle applies to official visits to school buildings (Education Law "1708[2]; Appeal of Silano, 33 Ed Dept Rep 20, Decision No. 12,961; judgment granted dismissing petition to review March 4, 1994, n.o.r.). However, the Commissioner of Education has previously held that an unauthorized school visit by a board member is not grounds for removal (Matter of Keyser, et al., 15 Ed Dept Rep 471, Decision No. 9248). Although Keyser involved a petition to the Commissioner for the removal of a board member pursuant to Education Law "306, I similarly find that such conduct does not establish official misconduct sufficient to justify removal by a board of education pursuant to Education Law "1709(18).

Finally, I also find respondent"s proof inadequate with respect to charge 6, which alleges that petitioner threatened and harassed the district clerk. The district clerk"s testimony established merely that on March 7, 2002 petitioner telephoned her to ask whether she would include certain information in the official minutes from the February 26, 2002 meeting. Although the district clerk did not recall the specific information that Burnett requested she include in the minutes, it should be noted that it was at that meeting that trustee Bordeaux allegedly assaulted Burnett. There is no testimony from the district clerk that petitioner threatened her. Accordingly, I find respondent board"s proof insufficient on this charge.

Although I am sustaining petitioner Burnett"s appeal based on the lack of evidence of official misconduct, I also note that it was improper for trustee Bordeaux to consider the charges against Burnett. The record reflects that at the time of the hearing, Bordeaux was facing criminal charges of assaulting Burnett. The pendency of these charges establishes sufficient basis for Bordeaux"s likely bias against petitioner Burnett. Accordingly, Bordeaux should have disqualified himself from participating in the determination of the charges (see, Komyathy v. Bd. of Educ. of Wappinger Central School Dist., 75 Misc. 2d 859).

Turning to the charges against petitioner Gill, for the reasons stated above, I find insufficient evidence to establish official misconduct with respect to charge 6 (pertaining to the cancelled March 6, 2002 special board meeting) and charge 10 (pertaining to Gill"s alleged unauthorized tour of a district building the week of January 28, 2002). I also find respondent"s proof deficient with respect to charge 4, which alleges that petitioner made certain statements about the condition of the roof of a district building in a televised interview. Respondents do not dispute that an architectural firm that inspected the district"s buildings recommended various roof repairs to correct certain defective conditions. Although respondents may contend that petitioner Gill"s statements are inaccurate or exaggerated, I do not find such allegations, even if true, are grounds for removal.

However, I find that the remaining three charges, all of which related to petitioner"s abusive conduct toward respondent board members and a resident taxpayer, constitute sufficient grounds to justify his removal. Respondent board"s proof with respect to charge 3 establishes that at an October 16, 2001 public board meeting, in response to a poll of board members" availability to attend respondent board"s annual retreat, petitioner responded "No. We ain"t going nowhere with these niggers." Respondent board"s proof with respect to charge 4 establishes that petitioner attended a public meeting at the Wyandanch Ambulance Corp. on February 7, 2002, along with a number of other district officials. Although it is not entirely clear from the record, it appears that the purpose of the meeting was to discuss the possibility of constructing new school facilities for the district. At some point during the meeting, in response to a question from a taxpayer, petitioner Gill berated the taxpayer, calling him, among other things, "an uneducated Negro." Petitioner Gill"s inappropriate behavior prompted the taxpayer to write a letter of complaint to the board president calling for Gill"s removal. The proof with respect to charge 8 establishes that the same taxpayer attended the February 26, 2002 board meeting and complained again about Gill"s conduct on February 7. In response, petitioner essentially admitted that he had called the taxpayer "much worse" than an "uneducated Negro."

Although an isolated intemperate remark generally is not grounds for removal, where a trustee engages in a pattern of inappropriate, antagonistic and offensive conduct that interferes with the board"s ability to function, removal is warranted. The record reveals that petitioner Gill engaged in a pattern of behavior that included personal attacks, racial slurs and antagonistic behavior toward his fellow board members and a taxpayer. Further, petitioner Gill continues to demonstrate both a lack of remorse or appreciation of the inappropriateness of his conduct and an inability or unwillingness to conduct himself with civility and decency. For example, in his petition, petitioner Gill attempts to justify his use of racial epithets and continues to use derogatory language to describe respondent board members, referring to them as "thugs" and "gangsters" and stating that they "lack mental capacity." I also note that petitioner Gill exhibited this same disdain during the misconduct hearing, calling the hearing chair a "fool." There can be no question that such behavior is antithetical to the oath of office which petitioner Gill has sworn to uphold. It also sets an extremely poor example to the children of the district, for whose benefit petitioner is obligated to work. Moreover, it reveals an animus and disrespect toward certain sectors of the community which respondent is obligated to serve.

The trustees of a school district are entrusted to manage the affairs of the district to achieve the best possible outcome for the district"s students. To effectively carry out that responsibility, each trustee must engage in constructive discussion with his or her fellow board members on a wide range of issues. Toward that end, it is imperative that a board member treat his or her colleagues with dignity and respect. It is beyond dispute that petitioner Gill"s behavior has a detrimental impact upon respondent board"s ability to carry out its responsibilities, and is, therefore, sufficient grounds to justify his removal. His inappropriate conduct also undermines public confidence in respondent board and thereby hampers its ability to carry out its mission. Accordingly, based on the totality of the circumstances, I do not find respondent board"s removal of petitioner Gill for official misconduct to be improper. I also note that this appeal provided petitioner Gill with an additional opportunity to present any evidence to defend the misconduct charges. I have reviewed his submissions and find nothing that establishes any defense to the three misconduct charges that justify his removal.

Finally, I lack jurisdiction to entertain petitioners" claim that the hearing was improperly conducted in executive session. 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 (seee.g., Appeal of Goldin, 38 Ed Dept Rep 317, Decision No. 14,043, and cases cited therein). Inasmuch as the Open Meetings Law governs the use of executive sessions, allegations regarding the improper use of executive sessions may not be the basis for an appeal to the Commissioner of Education (Application of T.D., 41 Ed Dept Rep , Decision No. 14,646; Application of Goldin, 39 id. 14, Decision No. 14,158; Appeal of Lambert, et al., 37 id. 588, Decision No. 13,935).

In light of this disposition, I need not address petitioner Burnett"s remaining claims.

I have examined the remainder of petitioner Gill"s claims and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner Burnett be reinstated to his position as a trustee of the Wyandanch Union Free School District, effective immediately.

IT IS FURTHER ORDERED that respondent board appoint a successor trustee to replace petitioner Gill within 20 days of the date of this decision.

END OF FILE