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Decision No. 15,126

 

Appeal of L.S. from action of the Board of Education of the Commack Union Free School District regarding censure.

 

 

(October 7, 2004)

 

Smith Mazure Director Wilkins Young & Yagerman, P.C., attorneys for petitioner, Joel M. Simon, Esq., of counsel

 

Bond, Schoeneck & King, PLLC, attorneys for respondent, Howard M. Miller, Esq., of counsel

 

MILLS Commissioner.--Petitioner challenges a resolution adopted by the Board of Education of the Commack Union Free School District (�respondent�) concerning petitioner�s behavior.  The appeal must be sustained.

Petitioner is a member of respondent board.  On September 18, 2003, respondent adopted a resolution regarding several actions taken by petitioner:

WHEREAS, the Board has long had serious   concerns about whether [petitioner] has engaged in conduct that violates District policy and is otherwise inappropriate and unbecoming of a member of the Board of Education; and

WHEREAS, the Board retained special outside counsel to investigate and advise the Board as to whether [petitioner�s] conduct warrants his removal from the Board; and

WHEREAS, [petitioner] has stated that he has not been given clear direction as to the rules and protocol governing the conduct of a member of the Board of Education, nor has he been given clear notice as to when, if at all, he has violated those rules.

NOW, THEREFORE, IT IS HEREBY RESOLVED THAT:

a) upon the recommendation of the District�s special counsel, the action of [petitioner] on April 8, 2002, in which he sent staff members who report to the Superintendent information regarding his private lawsuit with the Superintendent, is deemed improper and representative of poor judgment and [petitioner] is hereby notified of same;

b) upon the recommendation of the District�s special counsel, the action of [petitioner] in April 2003, in which without the authorization of the Board of Education, he contacted the New York State Council of School Superintendents, identifying himself as a member of the Board of Education, for the purposes of furthering his own private interests, is deemed improper and representative of poor judgment and   [petitioner] is hereby notified of same;

c) upon the recommendation of the District�s special counsel, the following additional conduct of [petitioner]  is deemed improper and representative of poor judgment, and [petitioner] is hereby notified of same:

1)  using profanity towards employees of the District;

2)  threatening legal action against employees of the District;

3)  soliciting proposals for professional services on behalf of the Board without Board approval;

4)  participating in locker searches at the high school or any other school within the District without authorization;

5)  using hostile language in written correspondences to other board members;

6)  contacting staff members on matters unrelated to his own children without authorization from the Superintendent or Board.

BE IT FURTHER RESOLVED that it is expected that  [petitioner] will, in the future, exhibit appropriate conduct and judgment warranted in all matters relating to School District or Board of Education affairs, including conduct of a nature specifically mentioned herein or reasonably related thereto; and be it further

RESOLVED, that if [petitioner] so requests, the District�s general and/or special counsel shall meet with [petitioner] and any representative(s) of his choice, to provide to him with any additional detail regarding the incidents described above to ensure that [petitioner] is on clear notice of what is expected of him; the substance of such meeting shall be confirmed in writing; and be it further

RESOLVED, that if [petitioner] is unclear as to the circumstances under which he may have contact with District employees on matters that do not directly pertain to his own children, he is directed to obtain clarification from the Superintendent or Board President; and be it further

RESOLVED, that the Board will request the District Superintendent of Western Suffolk BOCES to arrange a seminar on school district governance and [petitioner] is directed to include himself with the rest of the Board in attending this seminar.

This appeal ensued.

     Petitioner claims that the resolution constitutes a censure, in violation of Education Law ��306 and 1709.  Petitioner also asserts that the actions set forth in the resolution are unsubstantiated.  He maintains the resolution infringes on his First Amendment rights.

Respondent contends that the resolution was not a censure or reprimand but merely a criticism of petitioner�s poor judgment.  Respondent also asserts that, other than conclusory allegations, petitioner submits no proof that the actions, as described in the resolution, are unsubstantiated.  Thus, respondent maintains that the  resolution is, in all respects, proper.

     Before considering the merits, I must address a procedural matter.  Petitioner�s memorandum of law contains a new exhibit that was not a part of his original pleadings.  A memorandum of law may not be used to belatedly add exhibits that are not part of the record (Appeal of Smolen, 43 Ed Dept Rep ___, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540).  Accordingly, I have not considered the new exhibit appended to petitioner�s memorandum of law.

     Petitioner contends that the resolution constitutes an unlawful censure of him as a member of the board of education. While the Commissioner of Education is authorized to remove a board member from office pursuant to Education Law �306, the Education Law does not authorize the censure or reprimand of a board member by the Commissioner (Matter of Legatos, 23 Ed Dept Rep 10, Decision No. ll,ll3; Matter of Graham, 11 id. 220, Decision No. 8,426).  Similarly, while a board of education is authorized to remove one of its members for misconduct pursuant to Education Law �1709(18), the Education Law does not authorize the censure or reprimand of a board member by a board of education (Appeal of Silano, 33 Ed Dept Rep 20, Decision No. 12,961). 

A board of education, however, is authorized to criticize the actions of a board member for exhibiting poor judgment (Appeal of Silano, supra).  In an appeal to the Commissioner of Education, the petitioner bears the burden of establishing the facts upon which he or she seeks relief and the burden of demonstrating a clear legal right to the relief requested (8 NYCRR �275.10; Appeal of D.R., 43 Ed Dept Rep ___, Decision No. 15,035; Appeal of Kirschenbaum, 43 id. ___, Decision No. 15,020). 

Black�s Law Dictionary (8th Ed. 2004) defines �censure� as �an official reprimand or condemnation� or a �harsh criticism.�  The current Merriam-Webster Online Dictionary defines �reprimand� as �a severe or formal reproof.�  Respondent maintains that the resolution does not amount to a censure or reprimand, but instead merely criticizes petitioner�s judgment on several occasions and instructs him as to future behavior.  Although the resolution avoids the use of the words �censure� or �reprimand,� the  circumstances surrounding its adoption, as well as its tone, undercut respondent�s position. 

The incidents of petitioner�s alleged poor judgment and inappropriate behavior, that are cited in the resolution, spanned a period of approximately 17 months.  The fact that respondent waited almost one and one-half years before adopting the resolution belies respondent�s contention that the resolution was intended merely to criticize such actions, caution and instruct (cf.Silano, supra).

Petitioner maintains that the resolution constitutes a thinly veiled threat of discipline.  Although respondent denies that assertion, the resolution is prefaced by a �whereas� clause indicating that the purpose of investigating the underlying incidents that gave rise to the resolution was to determine �whether [petitioner�s]  conduct warrants removal.�  Indeed, the language of the resolution is akin to that used in formal disciplinary charges. Such language elevates the tone of the resolution to more than mere criticism.  Moreover, unlike the resolution in Silano, no specific corrective action is directed toward petitioner with respect to the conduct that formed that basis of the resolution.  Thus, I agree that the September 18, 2003 resolution constitutes an impermissible censure or reprimand.  This result, however, should not be read as support or endorsement of petitioner�s actions.

     Petitioner also maintains that respondent�s action violates the U.S. Constitution in that it has a chilling effect on his First Amendment rights. An appeal to the Commissioner of Education is not the proper forum to adjudicate novel issues of constitutional law (Appeal of Murray, 43 Ed Dept Rep ___, Decision No. 15,031; Appeals of American Quality Beverages, 42 id. 144, Decision No. 14,804). Therefore, I decline to address petitioner�s constitutional claim.

     In view of the above disposition, I need not address petitioner�s remaining claims.

 

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the September 18, 2003 resolution is annulled.

END OF FILE