Appeal of GEORGE R. HUBBARD from action of Tammy C. Roy, Robert L. Schroeder, Thomas E. Schultz, and the Board of Education of the Greece Central School District regarding board appointments.

 

Decision No. 15,304

 

(August 29, 2005)

 

Harris Beach LLP, attorneys for respondents, James A. Spitz, Jr., and Laura M. Purcell, Esqs., of counsel

 

MILLS, Commissioner.--Petitioner is a resident of the Greece Central School District and, at the time of the commencement of this appeal, was a member of its board of education.[1]  He challenges certain practices and actions of the board of education (“respondent board” or “board”) dealing primarily with appointive positions, notably deputy treasurer, district auditor (independent), internal claims auditor, and internal claims co-auditor.  He also raises questions regarding the manner in which board members are required to seek information with respect to district operations.  The appeal must be dismissed.

Petitioner claims that the board failed to make certain required annual appointments pursuant to its own policies.  Petitioner also claims that certain appointments were irregular, caused confusion, and held out one particular employee to the public as deputy treasurer, when her status was instead unclear.  Petitioner also claims that certain appointments were unauthorized because the positions had no defined duties.

With respect to the position of deputy treasurer, petitioner claims that the board appointed Thomas E. Schultz as deputy treasurer on July 15, 2003, and again on July 13, 2004.  He claims that the board also appointed Tammy C. Roy as deputy treasurer on July 13, 2004, effective July 29, 2004, without a resignation from Mr. Schultz, and that by doing so, created serious confusion.  Petitioner also contends that the deputy treasurer position had no defined duties.

With respect to the position of district auditor (independent), petitioner claims that the board appointed Raymond F. Wager, a certified public accountant, as independent auditor on June 30, 1988, and again on August 10, 2004, thereby failing to make an annual appointment for a period of 16 years.

Petitioner further alleges that on July 15, 2003, the board appointed Margaret Fellows to the position of internal claims auditor for the 2003-2004 school year, and on July 13, 2004, appointed Patricia Fowler for the 2004-2005 school year.  He claims these appointments were improper because the position had no defined duties.

With respect to the position of internal claims co-auditor, petitioner claims that the board appointed Thomas E. Schultz and Adam Geist on July 15, 2003, for the 2003-2004 school year, and Kathy Reichwald as internal claims co-auditor for the 2004-2005 school year on July 13, 2004.  Petitioner claims these appointments were improper because the positions had no defined duties.

Petitioner also contends that the board exceeded its authority in adopting policy 2370 entitled “Code of Conduct on Data Use,” and requiring board members, when requesting information, to use a form which asks, among other things, why the information is being requested.

Petitioner requests that I “instruct” respondent board to: abide by its own policies; be more diligent in making appointments; maintain clear and concise records of appointments; and make information available to duly elected board members.

Respondent board generally denies petitioner’s claims, and asserts a number of affirmative defenses, including mootness and untimeliness.

To the extent that the complaint can be read to challenge appointments made by the board more than 30 days prior to the commencement of this appeal on December 8, 2004, the appeal is clearly untimely (8 NYCRR §275.16).

Petitioner’s claims as to the deputy treasurer position have no merit for several reasons.  First, both on July 15, 2003, and July 13, 2004, the appointment of Mr. Schultz stated “that the duties of such office be to serve in the place and stead of the Treasurer when the Treasurer is unavailable.”  In addition, the duties of the deputy treasurer are set forth in Education Law §1720(2).  Contrary to petitioner’s claims, the appointment of Tammy Roy on July 13, 2004, was not to the same position as Mr. Schultz, but to an employee position entitled “Deputy Treasurer, Department of Finance and Support Services” reporting to the manager of the school business office.

Further, these claims have become moot.  Mr. Schultz resigned as deputy treasurer on October 23, 2004.  On November 9, 2004, the board appointed Robert Schroeder as interim deputy treasurer for the balance of the 2004-2005 school year.  Thereafter, Ms. Roy resigned her employment effective December 15, 2004, and on December 14, 2004, the board appointed Louis J. Alaimo to the position of deputy treasurer.  A memo from the Assistant Superintendent for Finance and Support Services makes it clear that Mr. Alaimo assumed the duties of both Mr. Schroeder and Ms. Roy, and that Ms. Roy’s internal position would not be filled.  As a result, any confusion because of the similar titles of these two different positions has now been eliminated.

I find no merit to petitioner’s contentions regarding the position of independent auditor.  While it appears that annual appointments were not made, petitioner makes no claim that Mr. Wager did not continue to perform the services required of him, nor does he indicate that any harm occurred from the omission to make annual appointments.[2]

Also meritless is petitioner’s claims with respect to the internal claims auditor position.  Respondent board provides a copy of its policy 1335, approved June 14, 1988, and revised June 9, 2003.  This policy sets forth the eligibility criteria, and refers to Education Law §1709(20-a), which sets forth the duties and responsibilities of the internal claims auditor.[3]

Finally, I find no merit to petitioner’s claims regarding the position of internal claims co-auditor.  Petitioner provides exhibits dated July 15, 2003, and July 13, 2004, which indicate quite clearly that the internal claims co-auditor is to perform the duties of the internal claims auditor when the internal claims auditor is unavailable.  Petitioner’s own exhibits thus demonstrate the lack of merit to his claims.

Petitioner’s remaining claim regarding access of information must also be dismissed.  While petitioner challenges respondent board’s “Code of Conduct on Data Use” policy, he does not indicate what information he has requested, and he fails to allege or prove that any information has been denied to him as a result of the policy.  In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he seeks relief (8 NYCRR §275.10: Appeal of Hubbard, 43 Ed Dept Rep 164, Decision No. 14,956; Appeal of Siwula, 41 id. 375, Decision No. 14,718).  Here, petitioner has failed to satisfy that burden.  As a result, this claim must be dismissed.

Finally, to the extent that petitioner’s requests that I “instruct” respondent board as to certain matters may be considered a request for a declaratory judgment, they are improper (Appeal of McCart, et al., 36 Ed Dept Rep 363, Decision No. 13,749; Appeal of Wells, 35 id. 367, Decision No. 13,573).

I have considered the parties’ other claims, and found them without merit.

 

THE APPEAL IS DISMISSED.

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