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Decision No. 15,324

Application of CHRISTOPHER W. COLEMAN for the removal of Joseph Bieron as a member of the Board of Education of the Orchard Park Central School District.

Decision No. 15,324

(November 17, 2005)

 

Hodgson Russ, LLP, attorneys for respondent, Karl W. Kristoff, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Joseph Bieron ("respondent") from the Board of Education of the Orchard Park Central School District ("board"). The application must be denied.

On September 24, 2004, the board voted to present three propositions to voters at a special district meeting on November 16, 2004. Two propositions provided funds for capital improvements for school facilities and the third authorized funds for the purchase of new buses. The voters approved the bus proposition and rejected the two facility propositions.

Petitioner objects to an article in the November 2004 edition of the Quaker News, a publication of the Orchard Park High School Parent Teacher Organization ("PTO"), entitled "A Special Message from Dr. Joseph Bieron, Board of Education President: What You Need to Know About the Upcoming November Proposition Vote." He alleges that respondent willfully violated "section 4:39 of the State Education Law" by improperly using school district channels of communication to advocate in favor of the propositions. Petitioner also contends that respondent violated "section 4:42 of the State Education Law" by permitting two school district administrators to advocate for two propositions at the November 9, 2004 board meeting. Petitioner seeks respondent' s removal under Education Law �306.

Respondent contends that he did not willfully violate the law or neglect any duty and states that there is no "section 4:39" of the State Education Law. Respondent denies that he used district funds or equipment to advocate for the passage of the propositions. He contends that the Quaker News is not a district channel of communication and states that he merely responded to a request from the PTO president with a factual memorandum. He further states that he had no knowledge or intention that the information would be published in the newsletter and that the PTO, not the district, paid for the publication of the newsletter. He also maintains that his memorandum appropriately provided factual information to voters. In addition, respondent requests a certification that he acted in good faith in accordance with Education Law �3811.

I must first address a procedural issue. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id . 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the reply, I have not considered the portion relating to paragraph seventeen of the petition concerning the remarks of the two administrators at the November 9, 2004 board meeting because it contains new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner also submitted a newspaper article as an exhibit. It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Application of Gabryel, 44 Ed Dept Rep 235, Decision No. 15,158; Application of Lilly, 43 id. 459, Decision No. 15,050; Appeal of Decastro, 41 id. 415, Decision No. 14,730). Therefore, I have not considered this submission.

The application must be dismissed. 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 Gabryel, 44 Ed Dept Rep 235, Decision No. 15,158; Application of Kavitsky, 41 id. 231, Decision No. 14,672; Application of Lilker, 40 id. 704, Decision No. 14,588). To be considered willful, respondent's actions must have been intentional and with a wrongful purpose. In an appeal or removal application to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR �275.10; Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Appeal of a Student Suspected of Having a Disability, 41 id. 329, Decision No. 14,702; Appeal of L.S., 41 id. 270, Decision No. 14,683).

Petitioner claims that respondent violated ��4:39 and 4:42 of the Education Law. No such sections exist. As respondent points out, petitioner most likely refers to School Law, a joint publication of the New York State School Boards Association and the New York State Bar Association. While this publication cites various legal requirements, it is not in and of itself a law or regulation. Petitioner has thus failed to allege specific violations of the Education Law.

Petitioner has also failed to establish that respondent acted intentionally or with a wrongful purpose. A board member may not use public resources to "exhort the electorate to cast their ballots in support of a particular position advocated by the board" (Phillips v. Maurer, et al., 67 NY2d 672), or to persuade, or convey favoritism, partisanship, partiality, approval or disapproval (Stern, et al. v. Kramarsky, et al., 84 Misc. 2d 447). The PTO president avers in her affidavit that on October 4, 2004, she contacted respondent by email to request that a representative of the board or administration provide information on the facility projects for inclusion in the PTO's November newsletter.

On October 7, 2004, respondent provided the PTO president with "an article for your use," indicating that the PTO president should "feel free to edit it in any way." The PTO president avers that respondent had no control over what part, if any, of his response would be included in the newsletter, or how it was presented. There is no evidence that respondent knew the information would be attributed to him verbatim. In any event, the article essentially contained factual information concerning the propositions and background. Accordingly, petitioner has failed to prove that respondent willfully or intentionally advocated for the passage of the propositions on behalf of the board in the newsletter.

Furthermore, petitioner has not demonstrated that the Quaker News is a district channel of communication. The PTO president avers that the PTO designs, creates, copies, staples and labels the newsletter, which is mailed using the PTO's bulk mailing permit, and clearly states that it is "a publication of the Orchard Park High School PTO." The fact that the PTO uses the high school's address as its return address does not establish the impropriety of such address (Appeal of Meyer, et al., 38 Ed Dept Rep 285, Decision No. 14,034). Accordingly, petitioner has failed to meet his burden of proving that respondent improperly used school district channels of communication to advocate in favor of the propositions.

I note, however, that the district's assistant superintendent for Business and Support Services avers that the district allowed the PTO to use district copy machines and paper for the preparation of the newsletter because the PTO provides substantial monetary and other contributions to the district. While the use of these district resources is not improper perse, the board must be vigilant to ensure that district resources, either directly or indirectly, are not used in the future to disseminate partisan information (seee.g.Appeal of Weaver, 28 Ed Dept Rep 183, Decision No. 12,076).

Petitioner also contends that respondent violated "section 4:42 of the State Education Law" by permitting two school district administrators to advocate for two propositions at the November 9, 2004 board meeting. As discussed above, no such section of the Education Law exists, and petitioner has failed to provide evidence in the petition in support of his allegation. Accordingly, he has failed to meet his burden of proof on this issue.

Finally, respondent requests that I issue a certificate of good faith pursuant to Education Law �3811(1). Where granted, such certification is solely for the purpose of authorizing the board to indemnify him for the legal fees and expenses associated with this processing. It is appropriate to issue such certification unless it has been established on the record that the requesting board member or trustee acted in bad faith (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15.050; Applications of Zimmerman, et al., 42 id. 205, Decision No. 14,823). As indicated above, I find that the record fails to establish that respondent acted in bad faith. Accordingly, I will issue a certification for the purpose of Education Law �3811(1) ( Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050).

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

THE APPLICATION IS DENIED.

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