Reopening of the 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. 15,816

(August 12, 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.--Pursuant to §276.8(c) of the Commissioner’s regulations, I hereby determine that Decision No. 15,783, dated July 19, 2008, must be reopened in the interests of justice to correct an error in that decision concerning the issuance of a certificate of good faith.  The original decision to deny the application, however, remains unchanged. 

Education Law §3811(1) does not provide for reimbursement of legal expenses incurred to defend “a criminal prosecution or an action or proceeding brought against ... [a board member] by a school district ... including proceedings before the Commissioner of Education ...”  Respondent, therefore, is not entitled to a certificate of good faith because the application for removal was brought by the school district of which he was an officer (seeApplication of the Bd. of Educ. of the Brentwood Union Free School District, 48 Ed Dept Rep ___, Decision No. 15,777; Application of the Bd. of Educ. of the West Babylon Union Free School District, 21 id. 41, Decision No. 10,592).  Accordingly, respondent’s request for a certificate of good faith must be denied.

IT IS ORDERED that Decision 15,783 is reopened and modified to the extent indicated above.

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