Application of the BOARD OF EDUCATION OF THE ELMONT UNION FREE SCHOOL DISTRICT for the removal of Aubrey Phillips as a member of the Board of Education of the Elmont Union Free School District.

Decision No. 15,783

(July 19, 2008)

Ingerman Smith, LLP, attorneys for petitioner, Susan E. Fine, Esq., of counsel

Black & Pennington Law Office, attorneys for respondent, Dale A. Black-Pennington, Esq., of counsel

MILLS, Commissioner.--Petitioner, Board of Education of the Elmont Union Free School District (“petitioner” or “board”), seeks the removal of Aubrey Phillips (“respondent” or “Phillips”) from his position as a member of the board.  The application must be denied.

Phillips has continuously been a member of the board since 1999 and his current term expired on June 30, 2008.

On June 13, 2005, the board unanimously voted to appoint a new superintendent to the district.  Approximately one year later, the board approved a $23,000 salary increase for the superintendent.  Thereafter, a local area newspaper, published an article relating to the superintendent’s salary increase.  In essence, the article noted that Phillips said that the superintendent’s salary was lower than what the board was willing to pay other candidates and that Phillips, two former trustees and a current trustee believed the superintendent was the “best man for the district.” 

Following the publication of this article, the board authorized its special counsel to begin an investigation into allegations of Phillips’s breach of confidentiality of executive session discussions for the purpose of publication.  This appeal ensued.

Petitioner alleges that Phillips breached his fiduciary duty to the board by divulging confidential information acquired during executive sessions to the press.  Specifically, petitioner asserts that these discussions involved the board’s decision-making process for its selection of a new superintendent and the salary to be offered.  By disclosing this confidential information, petitioner asserts that Phillips undermined the board’s position in future salary negotiations and hampered the board’s ability to conduct meaningful discussions in executive session.  As a result, petitioner asserts that Phillips violated both his oath of office and General Municipal Law §805-a.  Petitioner requests that I remove Phillips from the board because his conduct was both intentional and willful.

Phillips maintains that his comments to the reporter represented his personal and individual opinion and did not contain the content of any confidential discussions made by actual board members during any executive session.  Phillips also asserts that the petition is deficient because it fails to provide the specific substance of any conversations Phillips disclosed and/or the time(s), date(s) and place(s) of the executive sessions where such discussions took place.  Phillips also states that he made the comments to the reporter in good faith, after reviewing opinions of the Committee on Open Government and the Commissioner of Education, and that petitioner has failed to demonstrate that his actions were intentional or willful.  Finally, Phillips requests a certificate of good faith pursuant to Education Law §3811.

Initially, I note that respondent’s answer does not comply with §275.12 of the Commissioner’s regulations in that it neither admits nor denies the specific allegations of the petition.  In spite of this defect, and in the absence of any prejudice, I have considered the arguments made in the answer (seeAppeal of Wakker, 43 Ed Dept Rep 196, Decision No. 14,969).

Nevertheless, the application must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  By letter dated June 12, 2008, the district confirmed that respondent’s term, as a board member, expired on June 30, 2008.  Therefore, the relief petitioner requests -- removal of respondent from the board -– is not possible, and is moot.

Although the appeal must be dismissed one administrative matter remains.  Respondent has requested that I grant him a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of their duties as trustees.  It is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith (Application of Schenk, 47 Ed Dept Rep 375, Decision No. 15,729; Applications of Lilly, 47 id. 307, Decision No. 15,705; Application of Berman, 46 id. 378, Decision No. 15,537).  Based on the evidence in the record before me, I find that respondent is entitled to receive a certification of good faith.

I remind respondent, however, that a school board member takes an oath of office to uphold the law and faithfully discharge his duties and that a board member has a “fiduciary obligation to act constructively to achieve the best possible governance of the school district” (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; N.Y. State Constitution Art. XIII, §1; Public Officers Law §10).  Further, General Municipal Law §805-a(1)(b) prohibits a board member from disclosing confidential information obtained at an executive session of a board meeting (seeApplication of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Balen, 40 id. 250, Decision No. 14,474; Appeal of Henning, 33 id. 232, 234, Decision No. 13,035).  Care must be taken to preserve the confidentiality of information obtained at a properly convened executive session.

THE APPEAL IS DISMISSED.

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