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Decision No. 15,886

Application of TOMÁS DEL RÍO and JOSEPH FRITZ for the removal of board trustees George Talley, Stephen Coleman, Lorraine Pace and Suzanne Belanger-Embree and appeal from actions of the Board of Education of the Brentwood Union Free School District.

Appeal of KATHLEEN HOEY from actions of the Board of Education of the Brentwood Union Free School District regarding a special meeting.

Application of MICHAEL and KATHLEEN HOEY for the removal of Stephen Coleman as a trustee of the Board of Education of the Brentwood Union Free School District.

Decision 15,886

(March 2, 2009)

O’Brien & O’Brien, LLP, attorneys for respondents Board of Education of the Brentwood Union Free School District and Stephen Coleman, Stephen L. O’Brien, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent Board of Education of the Brentwood Union Free School District, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioners Tomás Del Río and Joseph Fritz appeal various actions of the Board of Education of the Brentwood Union Free School District (“board”) and seek removal of certain trustees.  In a separate appeal, petitioner Kathleen Hoey challenges the board’s actions regarding a special meeting.  In a separate application, petitioners Michael and Kathleen Hoey seek the removal of board trustee Stephen Coleman.  Because the appeals and applications present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed and the applications denied.

Application and Appeal of Del Río and Fritz

Petitioner Del Río was a member of the board from 2002 until June 30, 2008, and served as board president during the 2005-2006 and 2006-2007 school years.  Petitioner Fritz was a member of the board from May 2005 until June 30, 2008.  On October 24, 2007, the board filed with my Office of Counsel a removal application against petitioners Fritz and Del Río.[1]

Petitioners Del Río and Fritz object to several actions taken by the board and by individual trustees George Talley, Stephen Coleman, Lorraine Pace and Suzanne

Belanger-Embree (collectively “respondents”).  Petitioners seek the removal of trustees Talley, Coleman, Pace and Belanger-Embree.  Petitioners also seek a directive nullifying the telephone consulting agreement with Alan Rotto Consultants, Inc.; a directive to the district’s legal counsel, Ingerman Smith, LLP, regarding the provision of legal services to trustees; and a directive to the district’s superintendent concerning information requests by trustees.

Respondents generally deny petitioners’ allegations and raise several procedural objections.  First, to the extent petitioners seek removal of trustees Talley, Coleman, Pace and Belanger-Embree, respondents contend that the notice of petition is defective.  The Commissioner’s regulations require that the notice accompanying a removal application specifically advise the school officer that the application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioners failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660; Application of Hamilton, 45 id. 367, Decision No. 15,352; Appeal of Parisi, 42 id. 400, Decision No. 14,893).  Therefore, petitioners’ application for the removal of trustees Talley, Coleman, Pace and Belanger-Embree must be denied.

Respondents also argue that the removal application must be dismissed for improper service.  The record indicates that petitioners attempted to serve respondents Talley, Coleman, Pace and Belanger-Embree at 11:30 p.m. on October 18, 2007.  Section 275.8(a) of the Commissioner’s regulations provides, in pertinent part:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers  ... shall be personally served upon each named respondent ... between six o’clock in the morning and nine o’clock in the evening....

That provision requires that service be effected within the hours specified in the regulation (Appeal of Hennessey, 37 Ed Dept Rep 494, Decision No. 13,911; Appeal of Pavacic, 32 id. 135, Decision No. 12,783; Appeal of the Board of Educ. of the City School Dist. of the City of New York, 25 id. 359, Decision No. 11,612).  Petitioners acknowledge that service upon respondents occurred at 11:30 p.m., outside the specified time period.  However, petitioner Del Río asks that I excuse the failure to properly serve the petition because “as a layperson [he] was not aware of any rules or regulations governing service of petitions....  [Petitioners] thought that this was a convenient way to serve process in a professional manner.”  However, petitioners did not request approval of a means of service other than those authorized in §275.8(a), nor have they offered any basis upon which to justify the need for alternative service.  Under the circumstances presented, I find no basis upon which to excuse petitioners’ failure to properly serve the petition.  Therefore, because petitioners failed to effect proper service upon respondents, the application for their removal must be denied (Appeal of Hennessey, 37 Ed Dept Rep 494, Decision No. 13,911; Appeal of Pavacic, 32 id. 135, Decision No. 12,783; Appeal of the Board of Educ. of the City School Dist. of the City of New York, 25 id. 359, Decision No. 11,612).

Petitioners’ appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  As noted above, petitioners ask that I issue directives that would adversely affect the rights of Alan Rotto Consultants, Inc., Ingerman Smith, LLP, and the district’s superintendent.  As a result, they are all necessary parties and petitioners’ failure to join them requires dismissal. 

Although the appeal is dismissed and the application is denied for the foregoing reasons, one administrative matter remains.  Respondents have requested that I issue them certificates of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties as board members.  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; Application of Lilly, 47 id. 307, Decision No. 15,705; Application of Berman, 46 id. 378, Decision No. 15,537).  In view of the fact that this appeal and application are dismissed on procedural grounds and there has been no finding that respondents acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that respondents are entitled to receive the requested certificates.

In light of the above disposition, I need not address the parties’ remaining contentions.

Appeal of Kathleen Hoey

Petitioner Kathleen Hoey, a district resident and taxpayer, appeals certain actions taken by respondent board regarding a special meeting.  The appeal must be dismissed.

On October 22, 2007, the board held a special meeting at which two resolutions were adopted relating to the indemnification and legal defense of the board for the appeal filed against it by trustees Tomás Del Río and Joseph Fritz.  According to petitioner, the board failed to provide three of its seven trustees (Del Río, Fritz and Gail Kirkham) with 24-hour notice of the special meeting as required by Education Law §1606(3).  This appeal ensued.  Petitioner’s request for interim relief was denied on November 5, 2007.

Petitioner claims that the board’s action also violated the Open Meetings Law and petitioner’s “civil and voting rights.”  Petitioner seeks to invalidate all actions taken by respondent at the October 22, 2007 meeting.

Respondent board argues that the appeal 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  A subsequent special meeting of the board was held on October 30, 2007.  The meeting minutes  reflect that the two resolutions which form the basis of petitioner’s appeal were replaced and superseded by two adopted at that meeting.  As a result, the petition must be dismissed as moot.

Further, to the extent petitioner claims that respondent’s actions violated the Open Meetings Law, those claims must be dismissed.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law 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 L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Hubbard, 45 id. 466, Decision No. 15,383; Appeal of Hubbard, 45 id. 451, Decision No. 15,379).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

In light of this disposition, I need not address petitioner’s remaining contentions.

Application of Michael and Kathleen Hoey

Petitioners Michael and Kathleen Hoey seek the removal of respondent Stephen Coleman (“Coleman”) from the board (collectively “respondents”) on several grounds.[2] Petitioners claim that at the board’s February 26, 2008 meeting, Coleman engaged in “inappropriate, antagonistic, and offensive behavior against” board trustee Tomás Del Río.  Petitioners further allege that at the board’s March 5, 2008 meeting, Coleman “continued his aggressive behavior against Mr. Del Río by verbally attacking, pushing and threatening [him] with bodily harm.” 

Petitioners argue, interalia, that Coleman’s actions at the board’s February 26 and March 5, 2008 meetings constitute wilful misconduct for which he should be removed from office.  Specifically, petitioners claim that Coleman’s actions constitute a breach of his duties as a board trustee and wilful violation of various sections of the Penal Law.  Petitioners also claim that “since July of 2007” a majority of the board, including Coleman, has “systematically implemented a campaign of retaliation and censorship against” trustees Del Río and Joseph Fritz.

Respondents dispute petitioners’ account of the two meetings.  Respondents argue, among other things, that the application must be dismissed for improper service and for failure to prove a wilful violation of law or neglect of duty on the part of Coleman.  Respondents also request that I grant Coleman a certificate of good faith pursuant to Education Law §3811.

I must first address several procedural issues.  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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).    Therefore, while I have reviewed petitioners’ memorandum of law, I have not considered those portions containing new allegations, claims or exhibits that are not arguments of law.

To support respondents’ argument that the application must be dismissed for improper service, Coleman submitted an affidavit in which he states that he was served with the instant application at 9:30 p.m. on March 13, 2008.  As noted above, §275.8(a) of the Commissioner’s regulations states that a petition “shall be personally served upon each named respondent ... between six o’clock in the morning and nine o’clock in the evening....”  This provision applies to removal applications initiated under §306 of the Education Law and requires that service be effected within the hours specified in the regulation (Appeal of Hennessey, 37 Ed Dept Rep 494, Decision No. 13,911; Appeal of Pavacic, 32 id. 135, Decision No. 12,783; Appeal of the Board of Educ. of the City School Dist. of the City of New York, 25 id. 359, Decision No. 11,612).

Petitioners have submitted an affidavit of service indicating that Coleman was personally served at his home at 8:25 p.m. on March 18, 2008.  In their verified reply, petitioners argue that Coleman’s affidavit contains false statements based on the fact that their removal application was not verified until March 17, 2008 – four days after Coleman claims to have received service.  In their memorandum of law, respondents argue that the March 13, 2008 date referenced in Coleman’s affidavit was “nothing more than a scrivener’s error” and that “Mr. Coleman’s affidavit, together with his verified answer ... demonstrate that his argument regarding improper service relates to the ‘hours specified in the regulation’ not the day of service.”  In an appeal or removal application 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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  In light of the conflicting affidavits, I cannot conclude that that there was valid service on Coleman (seeAppeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).  Therefore, because petitioners failed to effect proper service upon respondent Coleman, the application must be denied (Appeal of Hennessey, 37 Ed Dept Rep 494, Decision No. 13,911; Appeal of Pavacic, 32 id. 135, Decision No. 12,783; Appeal of the Board of Educ. of the City School Dist. of the City of New York, 25 id. 359, Decision No. 11,612).

Although I am constrained to deny this application on procedural grounds, one administrative matter remains.  Respondents have requested that I issue Coleman a certificate of good faith pursuant to Education Law §3811(1).  As noted above, such certification is solely for the purpose of authorizing the board to indemnify Coleman for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as board trustee.  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; Application of Lilly, 47 id. 307, Decision No. 15,705; Application of Berman, 46 id. 378, Decision No. 15,537).  In view of the fact that there has been no finding that Coleman acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that Coleman is entitled to receive the requested certificate.

Finally, I note that the history of dissention among the trustees of the Board of Education of the Brentwood Union Free School District is well documented by the numerous actions commenced in the recent past by board trustees and district residents.  I am troubled by the apparent pattern of inappropriate and unprofessional behavior exhibited by this board.  The record before me illustrates all too well how conflict on a board interferes with the board’s ability to govern the affairs of district.  Although the parties blame each other for the unfortunate atmosphere, all board trustees must bear responsibility for it.  I strongly urge the board to engage in constructive discussions and avail itself of available training aimed at eliminating counterproductive behavior and achieving the best possible governance of the school district.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEALS ARE DISMISSED AND THE APPLICATIONS ARE DENIED.

END OF FILE


[1] Because petitioners Fritz and Del Río are no longer members of the board, that application was dismissed as moot (Application of the Board of Education of the Brentwood Union Free School District, 48 Ed Dept Rep 12, Decision No. 15,777).

[2] Petitioners also joined the board as a respondent.