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Decision No. 14,899

Application of THOMAS F. SIMMONS for the removal of members of the Board of Education of the Putnam Valley Central School District.  

Decision No. 14,899 

(July 8, 2003) 

Raymond G. Kuntz, P.C, attorneys for respondents, Raymond G. Kuntz, Esq., of counsel  

MILLS, Commissioner.--Petitioner seeks the removal from office of the members of the Board of Education of the Putnam Valley Central School District (the "board").  The application must be denied.

On September 3, 2002, Joseph Saporito, a member of the board, resigned from office.  On September 5, 2002, the remaining members of the board voted to appoint Edward MacDonald ("MacDonald") to fill the vacancy.  MacDonald had previously served as a member of the board.  Dissatisfied with MacDonald"s appointment, petitioner commenced this proceeding.

Petitioner alleges that board members provided personal and other sensitive information to MacDonald, prior to his appointment.  He further alleges that MacDonald improperly voted to appoint his wife to a clerical position with the district in April 2000.  He also questions the appointment of the wife of board President Patrick Bellino ("Bellino") to a clerical position with the district in January 2000.  Petitioner requests removal of the board members and an investigation of the allegations in the petition.  

Respondent board denies that any of its members provided MacDonald with personal or other sensitive information prior to his appointment or that MacDonald acted improperly in voting as a board member to appoint his wife to a clerical position with the district.  Respondent board also denies any impropriety with respect to the appointment of Bellino's wife to a clerical position with the district.  Respondent board contends that the appeal should be dismissed for lack of standing, failure to join necessary parties, and untimeliness.

In the caption of his petition, petitioner names himself and "Concerned Parents and Taxpayers of Putnam Valley School District" as petitioners.  To the extent petitioner purports to bring this appeal as an unincorporated association or as an individual representative of an unincorporated association, he lacks standing to maintain the appeal (Appeal of D'Oronzio, et al., 41 Ed Dept Rep 457, Decision No. 14,745; Appeal of Fuller, 41 id. 86, Decision No. 14,623).  However, I find petitioner has standing as an individual resident and taxpayer of the district to seek removal of respondent board members for misconduct (Applications of Eisenkraft, 38 Ed Dept Rep 553, Decision No. 14,092). 

Portions of petitioner's application for removal are untimely.  An application for removal 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, 277.1).  Petitioner's application is based in part upon allegations that MacDonald voted with other board members on April 27, 2000 to appoint his wife to a clerical position with the district, and the board appointed Bellino's wife to a clerical position with the district in January of 2000.  Petitioner commenced this proceeding on October 3, 2002, more than two years after those appointments. Petitioner does not provide an explanation for the delay.  Accordingly, the portions of petitioner's application for removal relating to past clerical appointments must be dismissed as untimely.

The appeal must also be dismissed for failure to join the members of the board of education.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner must be joined as a party (Appeal of a Student with a Disability, 39 Ed Dept Rep 752, Decision No. 14,369; Appeal of Lawson, 38 id. 713, Decision No. 14,124). Sections 277.1 and 275.8(a) of the Commissioner's regulations require that a copy of the petition for removal be personally served upon each named respondent.  In addition, an 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 a Student with a Disability, supra).  Since petitioner seeks removal of the board of education, the rights of the individual board members would clearly be affected if the petition were granted.  Because individual members of the board were not named as respondents in the caption of the petition or served with a copy of the petition, the appeal must be dismissed for failure to join them as necessary parties.

The Commissioner of Education has authority to remove a board member or school official, when it is proven to the Commissioner"s satisfaction that the board member or school official has engaged in a willful violation or neglect of duty under the Education Law or other law pertaining to the public schools or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Education Law "306; Application of Lilker, 40 Ed Dept Rep 704, Decision No. 14,588; Appeal of Gaul, et al., 40 id. 105, Decision No. 14,432).  To be considered willful, respondents' actions must have been intentional and with a wrongful purpose (Id.).  In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he seeks relief and the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Application of Lilker, supra; Appeal of Gaul, et al., supra).

Petitioner alleges that board members acted improperly by providing personal and other sensitive information to MacDonald.  Further, he alleges that MacDonald had been apprised of, and secretly involved in, personnel, budgetary and other sensitive matter of the board, prior to his appointment.  Petitioner, however, provides no substantive evidence to support these claims.  Thus, I find petitioner has failed to demonstrate that board members engaged in any willful violation or neglect of duty under the law. 

With respect to petitioner's request for an investigation, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Coleman, et al., 42 Ed Dept Rep _____, Decision No. 14,845; Application of Wilson, 41 id. 196, Decision No. 14,663). 

I have reviewed petitioner"s remaining contentions and find them without merit.   

THE APPLICATION IS DENIED.

END OF FILE