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Decision No. 15,263

Appeal of FRANCIS E. HOEFER from action of the Board of Education of the City School District of the City of Oswego; Kenneth Eastwood, Superintendent; Pauline McCarthy, Veronica Baker, Gordon Buske, Stanley Delia, Frederick Smith and Margaret Tiballi, members of the Board of Education; Girvin & Ferlazzo, P.C.; and Thomas N. Rinaldo, Hearing Officer, regarding his removal from office.

Appeal of FRANCIS E. HOEFER from action of the Board of Education of the City School District of the City of Oswego regarding his removal from office.

Decision No. 15,263

(July 29, 2005)

Mevec & Cognetti, attorneys for petitioner in the first appeal, Ralph A. Cognetti, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondents Board of Education, Superintendent, and Girvin & Ferlazzo, P.C., Scott Michael Goodspeed and Gregg T. Johnson, Esqs., of counsel

MILLS, Commissioner.--Petitioner was elected to the Board of Education of the City School District of the City of Oswego ("respondent board" or "board") in May 2000 and was reelected in May 2003. In the first appeal (Hoefer I, commenced on May 3, 2004), petitioner seeks to stay removal proceedings against him by respondent board pursuant to Education Law �1709(18). In the second appeal (Hoefer II, commenced on July 26, 2004), petitioner seeks reinstatement to respondent board following his removal on June 29, 2004. Because the appeals raise similar issues of law and fact, they are consolidated for decision. The appeals must be dismissed.

By resolution dated February 24, 2004, respondent board engaged the law firm of Girvin and Ferlazzo, P.C. ("G&F") as special counsel to investigate alleged acts of misconduct by petitioner that occurred between March 2001 and February 2004. Following an investigation, a majority of the board found probable cause that petitioner had engaged in official misconduct. By resolution dated March 16, 2004, the board voted to prefer written charges and conduct a hearing pursuant to Education Law �1709(18). On March 18, 2004, the board appointed Thomas N. Rinaldo as an impartial hearing officer ("IHO") to hear the charges against petitioner and appointed G&F to prosecute the charges on its behalf. On the same date, the board served petitioner with a notice of the written charges and a scheduled hearing date of March 30, 2004.

The notice contained five charges of official misconduct consisting of a total of 21 specifications and 42 sub-specifications. In addition to the alleged violation of several laws, petitioner was charged with violating Board Policy #2350 (Board Member Ethics) by failing to respect the basic dignity of those with whom he interacted in the course of his official duties, and Board Policy #1730 (Executive Sessions) relating to the willful disclosure of confidential information acquired during the course of his duties.

In general, the charges alleged that during petitioner's entire tenure as a member of respondent board, he "contributed and/or owned, maintained and operated a web site called 'Inside Oswego'" on which he disclosed sensitive and/or confidential information acquired in his capacity as a board member and commented on school district matters allegedly on the board's behalf but without its authority. Much of the disclosed material, which was posted on the web site under petitioner's name, concerned confidential information discussed during executive sessions of board meetings, including collective bargaining negotiations, personal comments about the superintendent and fellow board members, and personal and medical information about the district's former Assistant Superintendent for Business ("assistant superintendent"), who was the subject of an investigation and eventual dismissal (seeAppeal of D.J.H., 45 Ed Dept Rep ___, Decision No. 15,255).

On or about March 19, 2004, petitioner contacted the board to request that his hearing be held in public. By letter dated March 22, 2004, G&F denied petitioner's request. By letter to G&F dated March 25, 2004, petitioner's newly retained counsel requested discovery of documents and an adjournment of the hearing, and reiterated the request for a public hearing. By letter dated April 1, 2004, G&F rejected petitioner's discovery request but suggested an exchange of exhibits prior to the hearing. Additional correspondence ensued regarding the hearing request and discovery, with the same response. The hearing commenced on April 20, 2004, at which time G&F provided petitioner with copies of exhibits they intended to introduce.

HOEFER I

Petitioner commenced Hoefer I on May 3, 2004, seeking a stay of the hearing and a determination that the board acted improperly and denied his due process rights under both the Federal and State Constitutions by rejecting his requests for formal discovery and a public hearing. He also alleged that fellow board members had conflicts of interest that would prohibit them from testifying or hearing the charges against him, that the board violated the Open Meetings Law (Public Officers Law ["POL"] �107) by failing to hold a public hearing, and that the board lacked authority under Education Law �1709 to appoint a hearing officer. Petitioner further contended that the charges were untimely and moot because they had already been addressed by four prior board resolutions of criticism against him.

Concurrently, petitioner commenced an action on May 3, 2004 in Supreme Court, Onondaga County. On May 4, 2004, the Court issued on Order to Show Cause granting a stay of the hearing scheduled for May 5, 2004 to permit the appeal to be heard by the Commissioner. On May 7, 2004, the court vacated its order and the hearing concluded after a second and final day on May 10, 2004. Although petitioner was represented by counsel on April 20, he proceeded without counsel on May 10. The IHO issued a decision on June 16, 2004.

The answering respondents in Hoefer I assert that the board's actions to remove petitioner were authorized by Education Law �1709(18), and contend that Hoefer I must be dismissed for failure to state a claim upon which relief can be granted and failure to exhaust administrative remedies. Respondents also assert that the petition should be dismissed on the merits, as untimely, barred by the statute of limitations, and as premature. Respondents further state that the Commissioner lacks jurisdiction over claims pursuant to the Open Meetings Law. Finally, to the extent that petitioner seeks to stay the removal hearing, respondents assert that the petition is moot since petitioner participated in the second day of the hearing and the hearing has concluded.

Petitioner's claim that the board's decision not to hold a public hearing violates the Open Meetings Law must be dismissed for lack of jurisdiction. POL �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 (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of Burnett, 40 id. 403, Decision No. 14,511; Application of Lilker, 40 id. 305, Decision No. 14,486).

Hoefer I must also be dismissed in its entirety because it is moot. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts that no longer exist or that subsequent events have laid to rest (Appeal of P.F. and M.F., 42 Ed Dept Rep 390, Decision No. 14,890; Appeal of Lascala, 38 id. 16, Decision No. 13,974). Petitioner requested a stay of the removal proceeding against him. However, the hearing proceeded on May 10, 2004 and he participated in that hearing. Moreover, the Commissioner denied petitioner's request for interim relief on May 20, 2004. In addition, as discussed below, petitioner has already been removed from the board. Accordingly, no meaningful relief can be granted and Hoefer I must be dismissed as moot (Appeal of D.W., 43 Ed Dept Rep 188, Decision No. 14,965; Appeal of R.R. and K.R., 41 id. 405, Decision No. 14,726).

In light of this disposition, I need not address the parties' remaining arguments in Hoefer I.

HOEFER II

By decision dated June 16, 2004, the IHO sustained all five charges against petitioner and recommended petitioner's removal from respondent board. By resolution dated June 29, 2004, the board voted to adopt the IHO's recommendation and remove petitioner from the board. Hoefer II ensued on July 26, 2004. Petitioner's request for interim relief was denied on August 10, 2004.

Petitioner appeals his removal from respondent board and seeks reinstatement to his elected position. Petitioner maintains that the board brought charges against him for disclosing a confidential statement made by the assistant superintendent that was read to the board at an executive session on January 6, 2004 concerning his dismissal (seeinfra Charge 1, Specification 5; Charge 3, Specification 10; and Charge 4, Specification 4). Petitioner contends that this charge alone precipitated the hearing against him, that he is innocent of this charge, and that the IHO ruled that there was no proof that he had disclosed the assistant superintendent's statement.

Petitioner further contends that during the course of the removal hearing, he was charged with various other offenses that are untimely because they were not brought within 30 days of the alleged offense. Petitioner admits making many of the statements in the charges, but maintains that the First Amendment to the United States Constitution protects his statements and opinions. He claims that he never released confidential information and disputes the scope of the Open Meetings Law. Petitioner seeks assigned counsel to represent him before the Commissioner and reimbursement of his legal costs.

Respondent board maintains that the removal proceeding was authorized by Education Law �1709(18), all charges were supported by evidence presented at the hearing, and its decision to remove petitioner is supported by the hearing record. Respondent board asserts that petitioner admits many of the charges against him and fails to dispute the IHO's findings and recommendation. Respondent board further maintains that many of petitioner's defenses were not raised at the hearing below and, in any event, lack merit. In addition, respondent board contends that petitioner's claims regarding indemnification and assignment of counsel, among others, are barred by the statute of limitations and are moot. Respondent board also asserts that the Commissioner lacks jurisdiction to award monetary relief or reimburse legal expenses, and lacks jurisdiction over claims pursuant to the Open Meetings Law, the Taylor Act (Article 14 of the Civil Service Law [Public Employees' Fair Employment Law] regarding collective bargaining) and the First Amendment to the Constitution.

Preliminarily, as discussed above, the Commissioner lacks jurisdiction over complaints relating to the Open Meetings Law (POL �107).

Contrary to petitioner's assertion that respondent board only brought charges against him for releasing the assistant superintendent's statement, the two-day hearing concerned all five charges consisting of 21 specifications and 42 sub-specifications served on petitioner on March 18, 2004. The written record contains 56 exhibits from respondent board, one from petitioner (his written statement), and the hearing transcript. In addition to petitioner's testimony, the superintendent testified on the board's behalf. Petitioner also made various statements for the record in addition to his written statement. My review of the record indicates that the IHO considered the evidence relating to all charges served on March 18, 2004, and no additional charges were added.

Moreover, petitioner cites no authority, and indeed, there is none, for his assertion that "[i]t is clearly specified in education law that formal charges for misconduct must be brought within thirty days of the alleged offense." Petitioner apparently confuses the general requirement for appeals under Education Law �310, that an appeal must be "instituted within 30 days of the decision or the performance of the act complained of" (see 8 NYCRR �275.16). That time frame is inapplicable to a removal proceeding under Education Law �1709(18). Under that section, 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" after a hearing. A written copy of the charges must be served at least ten days before the hearing and the board member must be "allowed a full and fair opportunity to refute such charges before removal" (Education Law �1709[18]). This same authority is extended to respondent board, through Education Law �2503(1). There is no time restriction within which misconduct charges against a board member must be brought under these provisions.

On the record before me, I find that petitioner was afforded sufficient due process to satisfy the standard in Education Law �1709(18). The record reflects that by resolution dated March 16, 2004, a majority of respondent board voted to prefer charges against petitioner. Accordingly, I find that the board had the requisite authority to proceed against petitioner on misconduct charges. Petitioner was served with a copy of the charges on March 18, 2004 and the first hearing date was scheduled for March 30, 2004, more than ten days after petitioner's receipt of the 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 (Appeals of Gill and Burnett, 42 Ed Dept Rep 89, Decision No. 14,785; Gill v. Mills, et al., Supreme Court, Albany County, Special Term, Bradley, J. Judgment granted dismissing petition to review; October 6, 2003, n.o.r.; Appeal of Balen, 40 id. 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. A board member has a responsibility to comport himself properly and set an example for the student body (Application of Kozak, 34 Ed Dept Rep 501, Decision No. 13,396).

Petitioner admitted that he took an oath of office as a member of respondent board and did not dispute the superintendent's testimony that he was present at an orientation session for new board members on June 1, 2000, at which board policies and bylaws were distributed and reviewed.

I will address the five charges inseriatim.

Charge I

Petitioner was charged with five specifications and thirteen sub-specifications of violating board policy #2350 (Board Member Ethics) by failing to respect the basic dignity of those with whom he interacted in the course of his official duties. Specifications 1, 2, and 3 alleged, among other things, that on four dates between October 2003 and January 2004, petitioner posted on the "Inside Oswego" web site derogatory, defamatory, inflammatory, false and/or malicious statements: referring to the superintendent as a Nazi (specification 1), child abuser (specification 3) and someone who terrorizes and abuses students (specification 2); referring to respondent board members as dimwits and utter fools (specification 2); that the superintendent assaulted a 16-year old female student (specifications 2 and 3) and that the board covered it up (specification 3); and that the superintendent coerced teachers to falsify grades (specification 3). Specification 4 alleged that petitioner called the superintendent a "f...ing [expletive] idiot" during a telephone conversation in January 2004 and then threatened his job. Specification 5 alleged that petitioner published on the web site the contents of a confidential statement by the assistant superintendent to the board during an executive session on January 6, 2004. Various sub-specifications also alleged that petitioner's statements were unauthorized by the board, constituted willful and illegal harassment of the superintendent, undermined the public's confidence in the board and the board's effectiveness, and exposed the district to potential litigation.

Respondent board presented as evidence downloaded copies of articles posted on the "Inside Oswego" web site, most with dates and the typed name of the author. For the three dates in specifications 1, 2 and 3, the evidence contained articles with petitioner's name. For specification 4, respondent board produced an article with petitioner's name dated January 9, 2004. The article referred to the January 7, 2004 telephone conversation with the superintendent in which petitioner not only admitted calling the superintendent a fascist nazi and a "f. . .ing [expletive] idiot," but also disclosed a verbatim copy of the superintendent's memorandum to respondent board members memorializing the conversation immediately after it occurred on January 7.

With regard to articles on the "Inside Oswego" web site, petitioner admitted that "everything [the board] introduced in evidence with my name on it, as far as I can recall, was mine. . . .I'm proud of the things I wrote." From my review of the record and transcript, I find that the evidence supports the IHO's findings that petitioner posted the statements attributed to him for specifications 1 through 4, and had no authorization from the board to do so.

The specifications also allege that many of the published articles contained false and malicious statements. As the IHO noted, petitioner offered no affirmative proof under oath, subject to cross-examination, to establish any factual defenses to the charges. To the extent that petitioner attempts to offer factual defenses in the petition, he presents no evidentiary proof. Accordingly, I find no basis to credit his statements in the petition.

Regarding specification 5, the record contains the transcript of the executive session on January 6, 2004 at which the assistant superintendent presented a statement to the board in the course of his dismissal hearing. Prior to reading his statement, his attorney specifically sought assurances from each board member, including petitioner, to respect the confidentiality of the proceeding. Nonetheless, the statement was published on the "Inside Oswego" web site in two parts on February 19 and 20, 2004, and in full on March 12, 2004. The February 20 publication occurred one day after a hand-delivered letter from the board's attorney to all board members notifying them that the assistant superintendent had commenced an appeal to the Commissioner and that release of the assistant superintendent's statement was not authorized. The March 12 publication occurred one day after the assistant superintendent instituted a lawsuit in New York Supreme Court, Oswego County.

However, these three "Inside Oswego" articles have no name associated with them, and petitioner did not admit to posting them on the web site. The IHO determined that despite a strong suspicion that petitioner was responsible, other individuals were present at the executive session during which the assistant superintendent presented his statement, so the disclosure could not be attributed exclusively to petitioner. Therefore, the IHO declined to sustain the specification. I agree that the record evidence does not fully support specification 5 and I am thus constrained to uphold the IHO's determination.

Charge 2

This charge contained one specification, accusing petitioner of malicious defamation and intentional harassment and intimidation of fellow board members and employees under his supervision. The specification repeated and incorporated specifications 1-4 from Charge 1 (excluding specification 5 regarding the assistant superintendent's statement). Since the IHO upheld specifications 1-4 under charge 1, he adopted his findings as to those specifications. He also noted "the evidence disclosed that [petitioner], despite his averments that he sought to act on principle, essentially acted like a bully. . . .While purporting to be a champion of the truth, [petitioner] had little or no regard for the truth in what some might call his cowardly efforts to intimidate others." I agree that the record supports the IHO's findings on Charge 2.

Charge 3

Petitioner was charged with ten specifications and 21 sub-specifications of violating board policy #2350 (Board Member Ethics) and board policy #1730 (Executive Sessions) relating to the willful disclosure of confidential information acquired during the course of his duties. The specifications concern two different topics: disclosures about the assistant superintendent and disclosures regarding teacher union negotiations.

Specifications 1, 2, 3, and 10 alleged, among other things, that on six dates between December 2003 and March 2004, petitioner disclosed on the "Inside Oswego" web site personnel matters regarding the assistant superintendent. Specifically, petitioner published on the web site details of events that transpired in executive sessions relating to the investigation and eventual dismissal of the assistant superintendent and his statement to the board about his treatment for drug addiction and treatment. Specification 2(a) also alleged that petitioner published a remark that he would "never keep the actions of the school board confidential," even those actions conducted in executive session.

Respondent board again presented as evidence downloaded copies of articles from the "Inside Oswego" web site. For the dates in specifications 1 and 2, petitioner signed the articles. However, for the date charged in specification 3, the article had no name. Therefore, the IHO sustained only specifications 1 and 2, but did not sustain specification 3. I find that that the evidence supports the IHO's findings.

Specification 10, which contained eight sub-specifications, concerned the publication on the website of the assistant superintendent's statement to the board during executive session on January 6, 2004. As discussed above regarding Charge I-specification 5, these articles were published without a name and could not be attributed to petitioner. Therefore, as he found regarding Charge I-specification 5, the IHO did not sustain specification 10 here. I agree with this finding.

Specifications 4 through 9 alleged that on six dates between March 2001 and September 2003, petitioner disclosed confidential contract negotiations and proposals between respondent and the Oswego Classroom Teachers' Association ("OCTA") that had been discussed in executive session. Among other things, such disclosures exposed the district to litigation under the Taylor Act. Indeed, OCTA filed three Notices of Claim against the district as a result of the disclosure of confidential bargaining proposals on the "Inside Oswego" web site. The articles described in specifications 6 and 8 led to the filing of two of those Notices. (In addition, between December 2000 and January 2004, the board passed four Resolutions of Criticism against petitioner, three of which related specifically to his disclosure of bargaining positions in OCTA negotiations.)

Specification 6, sub-specifications a-c, concerns an article entitled "Confidential" in bold background, signed by petitioner on September 20, 2003, in which he admitted that "[t]his is 'confidential information' but I feel compelled to disclose it. . .." Specification 7 concerned an article signed by petitioner on March 5, 2003. Specification 8 concerned an article signed by petitioner published on March 23, 2001 containing explicit details of salary and other OCTA negotiation proposals. The IHO sustained specifications 6, 7 and 8, and I agree that the evidence supports his conclusions.

The IHO also sustained specification 4 concerning an article published on September 30, 2003. However, I do not find that particular article in the record before me and thus I am constrained to determine that the evidence does not support the IHO's determination on specification 4 and his finding on that specification must be overturned.

The IHO did not sustain specification 5 concerning an article published on the web site on September 28, 2003. Although petitioner signed the September 28 article, the article did not disclose any confidential information. I concur, therefore, with the IHO's determination. I also agree, however, with the IHO's statement that petitioner's statement in the article, that he "never agreed to confidentially of any kind in the OCTA negotiations presently underway," "reveals his profound lack of regard for duties as a Board member and Board policies, together with external law in New York . . .."

I also concur with the IHO's determination not to sustain specification 9 based on lack of evidence. Specification 9 alleged that petitioner posted an article on the web site on May 23, 2001, regarding confidential teacher negations. The record contains no article from the web site for that date.

Charge 4

Charge 4 contained four specifications and eight sub-specifications charging petitioner with the willful violation of the laws of the United States and/or the State of New York, including, but not limited to, the due process clause of the United States Constitution, New York General Municipal Law ("GML") �805-a and Article 14 of the New York State Civil Service Law (the Taylor Act) regarding the disclosure of confidential information. A board member's disclosure of confidential information obtained at an executive session of a board meeting violates GML �805-a(1)(b) (Applications of Balen, 40 Ed Dept Rep 250, Decision No. 14,474; Application of the Bd. of Educ. of the Middle Country CSD, 33 id. 511, Decision No. 13,132; Appeal of Henning and Rohrer, 33 id. 232, Decision No. 13,035; see also 2000 Op. Atty Gen [Inf.] 2). The specifications charged that petitioner's actions were unauthorized, exposed the board to potential litigation and were committed outside the scope of petitioner's duties and obligations as a board member.

Specification 1 incorporated the ten specifications of Charge 3. The IHO sustained specifications 1, 2, 4, 6, 7 and 8 (although I overturned his finding on specification 4), and did not sustain specifications 3, 5, 9 and 10. The IHO noted that Charge 3-specification 10 (relating to the disclosure of the assistant superintendent's January 6, 2004 statement) adopts the factual allegations of Charge 1-specification 5, which he did not sustain, and is mirrored again in Charge 4-specification 4. The IHO, therefore, found it unnecessary to consider Charge 4-specification 4 herein. He sustained only specifications 1, 2, 4, 6, 7 and 8 as he did in charge 3. I concur with the exception of specification 4, which I overturned for lack of evidence.

Specification 2 alleged that on the web site on two dates in 2001, petitioner urged OCTA to overthrow their leadership and elect representatives more favorable to the board's positions. These articles led to the filing of a Notice of Claim by OCTA against the district. The IHO determined that the record did not contain sufficient proof that petitioner was responsible for these articles. Although the record contains a Resolution of Criticism passed by the board against petitioner in July 2001 for his actions in posting these articles, the record does not contain the articles themselves and thus I am constrained to uphold the IHO's determination.

Specification 3 alleged that in June 2002, petitioner, identifying himself as a member of respondent board, published an editorial in a local newspaper and improperly disclosed personal information about a student. Although petitioner clearly authored the editorial, and published information concerning a student, the IHO determined that petitioner did not violate the confidentiality provision of GML �805-a(1)(b) or the Taylor Act, and he did not sustain the specification. I lack jurisdiction to determine whether such disclosure violates the federal Family Rights and Privacy Act ("FERPA"). Such authority rests with the United States Secretary of Education, and not the Commissioner of Education (seeAppeal of Tucker, 39 Ed Dept Rep 824, Decision No. 14,393; Appeal of Lawson, 38 id. 713, Decision No. 14,124; Appeal of Schuler, 37 id. 512, Decision No. 13,915). Thus, I am constrained to concur with the IHO's finding on this specification.

Specification 4 is not sustained as discussed above. It relates to the disclosure of the assistant superintendent's statement at the board's January 6, 2004 executive session that could not be attributed to petitioner.

Charge 5

A single specification charged petitioner with the willful violation of the laws of the State of New York, the New York State Constitution and his oath of office, and neglect of his duties as a member of respondent board by consistently voting "no" on all tenure appointments and by his statement that he does not believe in tenure. The specification charged that he violated his duty to appoint teachers under Education Law �2503(5) and Article V, section 6 and Article XI, section 1 of the New York State Constitution.

The IHO determined that Articles V and XI of the Constitution did not appear relevant to Charge 5, and petitioner did not challenge that finding. The IHO determined, however, that Education Law �2503(5), which empowers a board of education in a small city school district to appoint teachers, contains within it an implicit duty that requires a board member "to consider on its merits any tenure decision before the Board." The IHO found that petitioner considered himself above the law, as reflected in a newspaper editorial petitioner wrote in June 2002 in which he stated: "I will not approve tenure for any teacher in this school district. I believe that tenure protects substandard and incompetent teachers . . .." The IHO therefore sustained Charge 5.

The evidence also contains minutes from twelve board meetings at which petitioner voted against tenure for 46 individuals. As I have previously stated:

...the State has an important, substantial interest in ensuring that members of boards of education fulfill their constitutional oath of office and carry out their official duties in accordance with the law, by requiring a board member to base his or her vote, whether that be a vote in favor, against or an abstention, solely upon such board member's assessment of the individual merit of each teacher recommended for tenure. The State's interest directly relates to the "effective and efficient fulfillment of its responsibilities to the public" [Connick v. Myers, 461 US 138, 150] and outweighs any interest a board member may have in expressing his or her opposition to the State tenure system by abstaining on all tenure recommendations regardless of the merit of the particular individual so recommended (Appeal of Craft and Dworkin, 36 Ed Dept Rep 314, Decision No. 13,734).

Although petitioner did not abstain on the tenure votes in question, he voted against tenure without any apparent consideration of any individual's merit. I conclude, therefore, that the record supports the IHO's determination.

In summary, the IHO sustained all five charges against petitioner although he did not sustain eight of the 21 specifications (one of the five specifications in Charge 1; 4 of 10 specifications in Charge 3 [in addition to which I overturned another]; and three of four specifications in Charge 4). However, the IHO specified that "[i]n those instances where a Specification has not been sustained, the remainder of the Specifications under the Charge amply support a finding that the Charge itself has been established." He noted that petitioner offered no affirmative proof under oath, subject to cross-examination, that sought to mount any factual defenses to the charges. I find no affirmative proof offered in the petition sufficient to defend the charges, and I sustain the IHO's findings with one exception, as discussed in detail above.

The IHO also stated, in recommending without reservation petitioner's removal:

[Petitioner's] conduct, as shown in this record, can quite simply be labeled a disgrace. While [petitioner] may have fancied himself a maverick, the record in this case conclusively establishes that he was motivated not by any genuine concern for the educational services delivered to the children of the District but, instead, by the need to aggrandize himself by virtue of his membership on the Board. In the process, he violated critically important Board Policies and statutory mandates. His willingness to dispense with the truth and his refusal to follow the law and Board Policies make him singularly unfit to serve as a member of the Board.

I concur with the IHO's assessment. The record reveals that petitioner engaged in a pattern of behavior that constituted official misconduct. His conduct was unauthorized, inappropriate, antagonistic, offensive and demeaning towards his fellow board members, the superintendent and OCTA, and interfered with and compromised the board's effectiveness and ability to function. He has expressed no remorse or appreciation of the inappropriateness of his conduct, and continues to act with defiance and disdain. For the reasons discussed above, the appeal is dismissed.

Finally, to the extent petitioner requests legal representation, he cites no authority for the appointment of legal counsel to appear before the Commissioner, and indeed there is none. In addition, the Commissioner has no authority to reimburse legal costs (Appeal of Loveland and Hazelton, 42 Ed Dept Rep 294, Decision No. 14,858).

In light of this disposition, I need not address the parties' remaining claims.

THE APPEALS ARE DISMISSED.

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