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Decision No. 14,826

Appeal of CAROLE LAWSON from actions of the Board of Education of the Hicksville Union Free School District and Patricia Love regarding personnel decisions.

Decision No. 14,826

(December 24, 2002)

Guercio & Guercio, attorneys for respondents, Gary L. Steffanetta, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals certain personnel decisions of the Board of Education of the Hicksville Union Free School District ("respondent board") and seeks the removal of one of its members, Patricia Love ("respondent Love"). The appeal must be dismissed.

Respondent board consists of seven members. On August 30, 2001, respondent board held an emergency meeting to, among other things, fill numerous coaching positions. Only four board members, including respondent Love, attended that meeting. The attending members voted 4-0 to approve 26 coaching appointments, including the appointment of Steven Love, respondent Love"s 27-year old son, as Boys" Junior Varsity ("J.V.") Soccer Coach. On April 23, 2002, respondent board voted 4-2 with one abstention to grant tenure to Daniel Nugent as District Director of Athletics, Health, Physical Education, Driver Education and Recreation. Respondent Love was among the four members who voted to grant tenure. On May 21, 2002, respondent board voted 7-0 to appoint Steven Love as Assistant Boys" Varsity Soccer Coach.

Petitioner claims that respondent Love violated the conflict of interest provisions of General Municipal Law ("GML") "800(3) by voting on her son"s two coaching appointments and by voting to grant tenure to Mr. Nugent. She argues that respondent Love cast the deciding vote on her son"s appointment as Boys" J.V. Soccer Coach and on Mr. Nugent"s tenure. Petitioner claims that respondent Love voted to grant Mr. Nugent tenure because he had recommended her son for the coaching positions. Petitioner seeks respondent Love"s removal, alleging that she willfully violated GML "800(3); removal of Steven Love as a district employee; reversal of the grant of tenure to Mr. Nugent; and an order directing the district to file misdemeanor charges against respondent Love.

Respondents contend that the petition must be dismissed as untimely, as barred by laches, for failure to join necessary parties, and for failure to state a claim upon which relief may be granted. Respondents also deny that respondent Love violated any conflict of interest provision, law or regulation. In addition, respondent Love requests a certification that she acted in good faith in accordance with Education Law "3811.

Petitioner"s claims regarding the votes taken on August 30, 2001 and April 23, 2002 must be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days of the action or decision complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16). The petition was served on June 19, 2002, 9" months after the first vote and almost 2 months after the second vote. Petitioner has offered no excuse for the delay in serving the petition. Therefore, her claims regarding those votes are dismissed as untimely.

The appeal must also be dismissed for failure to join necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Olsen, 42 Ed Dept Rep ___, Decision No. 14,761; Appeal of Roff, 41 id. ___, Decision No. 14,708; Appeal of Gargan, 40 id. 465, Decision No. 14,528). Petitioner seeks to remove Mr. Love and reverse the grant of tenure to Mr. Nugent. Clearly, a determination in petitioner"s favor would adversely affect both Mr. Nugent and Mr. Love. Accordingly, petitioner"s failure to join them as parties requires dismissal of the appeal.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner has failed to establish facts sufficient to warrant the removal of respondent Love pursuant to Education Law "306. A member of the board of education may be removed from office pursuant to Education Law "306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Kavitsky, 41 Ed Dept Rep ___, Decision No. 14,672; Application of Lilker, 40 id. 704, Decision No. 14,588; Application of Kozak and Hetey, 40 id. 195, Decision No. 14,459). To be considered willful, respondent"s actions must have been intentional and with a wrongful purpose. In an appeal to the Commissioner of Education, the 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 she seeks relief (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep ___, Decision No. 14,702; Appeal of L.S., 41 id. ___, Decision No. 14,683; Application of Lilker, supra).

The GML conflict of interest provisions define interest as "a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves" (GML "800[3]). That section further provides that "a municipal officer or employee shall be deemed to have an interest in the contract of (a) his spouse, minor children and dependents, except a contract of employment with the municipality which such officer or employee serves,..." For purposes of the statute, a minor is defined as "a person who has not attained the age of eighteen years" (GML "2[3]).

Mr. Love is not a minor, as the record clearly indicates that he is 27 years old. Furthermore, although "dependent" is not defined in the statute, petitioner has failed to show that Mr. Love was respondent's dependent merely because he resided in his mother's home. Moreover, petitioner has failed to prove that respondent derived a direct or indirect pecuniary or material benefit from the fact that Mr. Love resided under her roof. Finally, employment contracts are specifically exempt from the conflict of interest provisions. As such, the circumstances described do not constitute a violation of the statute.

In light of this disposition, I need not consider the parties" remaining arguments.

In view of the fact that petitioner's appeal must be dismissed for the reasons set forth above, I certify that respondent Love appears to have acted in good faith for purposes of Education Law "3811(1).

THE APPEAL IS DISMISSED.

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