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Decision No. 15,747

Application of MICHAEL J. GENTILE for the removal of Edward Lilly as a member of the Board of Education of the Lewiston-Porter Central School District.

Decision No. 15,747

(April 25, 2008)

MILLS, Commissioner.--Petitioner seeks the removal of Edward Lilly (“Lilly”) from his position as a member of the Board of Education of the Lewiston-Porter Central School District (“board”).  The application must be denied.

At the board’s March 20, 2007 meeting, the board president reported that it had come to his attention that, in March 2006, the poll books used at the May 2005 election “were allowed to be taken off the campus by a private individual at the direction of a member of the Board of Education” (thereafter alleged to be Lilly).  It appears that, at the time, Lilly had requested the acting superintendent to provide the 2005 poll books to an individual, Alan Ward, without submitting a request pursuant to the Freedom of Information Law (“FOIL”)(Public Officers Law Article 6).  The poll books were given to Mr. Ward who took them off the premises, apparently to give to Lilly.

In March 2007, Lilly again made such a request with respect to the 2006 poll books.  The district clerk consulted with the board attorney and denied the request.  At the March 20, 2007, meeting, a debate ensued between Lilly and other board members regarding the need for Lilly to submit a FOIL request to access the poll books, the propriety of removing the books from district offices, and the potential need for redaction of the lists.  Thereafter, Lilly submitted a FOIL request for copies of certain portions of the 2006 poll books.

Petitioner asserts that Lilly willfully used his position as board member to direct and intimidate district administrators and the board president to violate board policy relating to records access, FOIL and Education Law §2116.  He further claims that Lilly improperly used his position to avoid payment for copies of records, obtain such records in a form not otherwise available to other residents and to improperly remove district property from district offices.  Petitioner also contends that Lilly improperly caused district administrators to provide the poll books to “a non-qualified voter” and failed to heed the district clerk and school attorney’s legal opinions.  Petitioner claims Lilly’s actions were willful, warranting his removal from office.

Lilly denies the allegations, asserts that the application is time-barred and, as to the claims from March 2006, maintains that they are also moot.  He contends that petitioner has failed to demonstrate a basis for his removal. 

I must first address several procedural matters.  Petitioner requests permission, pursuant to §276.5 of the Commissioner’s regulations, to submit several additional documents.  The documents include an exhibit referenced in, but inadvertently omitted from, the petition; board approved minutes of the March 20 and April 21, 2007 meetings, which were not available at the time the petition was filed; and an affidavit attesting to the veracity of a opinion letter published in a local newspaper, which was attached as an exhibit to the petition.  None of these additional exhibits prejudice respondent and, therefore, they have been accepted as part of the record.

Lilly asserts the appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Bean, 42 id. 171, Decision No. 14,810).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Application of Dulkiewicz, 40 id. 710, Decision No. 14,590; Appeal of Leman and Sluys, 39 id. 407, Decision No. 14,274).  Information relating to Lilly’s access to the 2005 and 2006 poll books - the genesis of petitioner’s claims in this proceeding - was not revealed until March 20, 2007.  This application was initiated on April 17, 2007, within the required 30-day time period and, therefore, is timely.

Lilly also asserts that, because the March 2006 incident occurred during his previous term of office which expired June 30, 2006, it cannot provide a basis for removal during his current term of office.  However, acts of misconduct which occurred in a term prior to a board member’s current term of office may form the basis for removal (seeAppeals of Wolf, 34 Ed Dept Rep 164, Decision No. 13,270, citing Application of Bd. of Ed. of the City School District of the City of New York and Richard R. Green, 28 id. 451, Decision No. 12,168).

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 (Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Application of Lilly, 43 id. 459, Decision No. 15,050).  To be considered willful, respondent’s actions must have been intentional and with a wrongful purpose.  Removal from office is a drastic remedy that should be taken only in extreme circumstances (Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Application of Cimino, 39 id. 583, Decision No. 14,319).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

The gravamen of petitioner’s application is his claim that Lilly willfully used his position as a board member to intimidate district officials so as to cause them to violate Education Law §2116, board policy and FOIL relating to records access.  Education Law §2116 provides:

The records, books and papers belonging or appertaining to the office of any officer of a school district are hereby declared to be the property of such district and shall be open for inspection by any qualified voter of the district at all reasonable hours, and any such voter may make copies thereof.

Although petitioner claims Lilly willfully used his position to cause or attempt to cause district administrators and officials to violate this statute and district policy, most of petitioner’s allegations relate to Lilly’s purported attempts to avoid compliance with the procedural provisions of FOIL, such as the requirement for a written records request and payment for copying costs.  Here, the district’s records access policy implementing Education Law §2116 requires that the public follow FOIL procedures to access records. Consequently, there is no broader scope of review under §2116 or district policy than under FOIL (seeAppeal of Martinez, 37 Ed Dept Rep 435, Decision No. 13,898; Appeal of Greening, 36 id. 394, Decision No. 13,759).

Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations 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 Milazzo, 43 Ed Dept Rep 294, Decision No. 14,999; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.  Moreover, I note that any allegations of noncompliance with FOIL requirements in permitting access to district records without written requests or payment more appropriately pertain to the actions of the district administrators rather than Lilly.

There is insufficient evidence in the record to support the assertion that Lilly willfully used his position as a board member to coerce or intimidate district administrators or officials.  Petitioner’s claims are set forth in a conclusory manner and he submits no affidavits from any district administrators or officials to support them.  Petitioner asserts that, in a telephone voice message, Lilly attempted to coerce the board president to release the poll books to him.  However, no transcript of the message was submitted.  Although the board minutes reveal that Lilly debated with board members regarding these matters, he also apologized for being part of an incident that caused people anxiety.  He also subsequently submitted a written request for certain portions of the 2006 poll books.  In sum, petitioner has failed to demonstrate, on this record, that any action of Lilly provides a sufficient basis to warrant his removal.

THE APPLICATION IS DENIED.

END OF FILE