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Decision No. 15,892

Appeal of THERESA BUDICH, from actions of the Board of Education of the Monroe-Woodbury Central School District relating to the ratification of a collective bargaining agreement, and application for the removal of MICHAEL DIGERONIMO as a member of the board.

Decision No. 15,892

(March 13, 2009)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondents, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner, a taxpayer and member of the Board of Education of the Monroe-Woodbury Central School District (“board” or “respondent”), appeals the actions of the board and seeks the removal of Michael DiGeronimo (“DiGeronimo”, collectively “respondents”) from his position as a member of the board.  The appeal must be dismissed and the application for removal must be denied.

DiGeronimo was elected to the board for a three-year term in June 2007.  On July 9, 2008, he was elected president of the board.

In the spring of 2007, contract negotiations began on a collective bargaining agreement between the board and the Monroe-Woodbury Teachers’ Association (“MWTA”) for the period of July 2007 through June 2010.  On August 28, 2008, a Memorandum of Agreement (“Agreement”) was reached between the district and the MTWA.  On September 10, 2008, the board ratified the Agreement.[1] This appeal ensued. 

Petitioner contends that DiGeronimo wilfully violated his role as president and board member by ratifying an agreement with MWTA that was not in the best interest of the district’s taxpayers or students.  Petitioner also alleges that DiGeronimo changed the terms of the board’s bargaining position, which had been in place during the prior 18 months of negotiations.  Petitioner seeks the removal of DiGeronimo from the board because of his failure to recuse himself from district negotiations with the MWTA due to an alleged conflict of interest, i.e., his wife’s membership in the MWTA.  Petitioner also seeks to overturn the board’s ratification of the Agreement and requests that I nullify the Agreement.

Respondents allege that the appeal is untimely and that petitioner has failed to demonstrate that DiGeronimo has engaged in any wilful violation or neglect of duty warranting removal from the board.  Specifically, respondents allege that there is no prohibited conflict of interest under State law when a board member approves a contract with a membership corporation or other voluntary non-profit corporation or association of which his spouse is a member.  Respondents also allege that service of petitioner’s memorandum of law was untimely and, therefore, should not be considered.

Pursuant to §276.4 of the Commissioner’s regulations, petitioner was required to serve her memorandum of law within 20 days after personal service of the answer.  Where the answer is served upon petitioner or petitioner's counsel by mail, the date of mailing and the four days subsequent thereto shall be excluded in the computation of the 20-day period in which petitioner's memorandum of law must be served and filed.   Respondent mailed his answer on November 18, 2008 and the affidavit of service reflects that petitioner served her memorandum of law by mail on December 12, 2008, which is within the 20-day period in which petitioner’s memorandum of law must be served and filed. Therefore, I have therefore considered petitioner’s memorandum of law. 

The appeal is also timely.  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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442).

The Agreement was ratified on September 10, 2008.  The affidavit of service reflects that the original petition was served on October 10, 2008, 30 days later.  By letter dated October 16, 2008, the petition was returned to petititioner by my Office of Counsel because it did not comply with the Commissioner’s regulations.  Petitioner was notified that, if a corrected petition was served and filed within two weeks from the date of such letter, the appeal would be deemed to have been initiated on the date the original petition was served on respondent.  Petitioner re-served a corrected petition on October 29, 2008 and filed the petition on October 30, 2008, within two weeks of the October 16, 2008 letter.  The appeal is, therefore, timely.

The application to remove DiGeronimo as president and member of the board must nevertheless be denied.  A president or member of the board may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or board president has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Lilker, 40 id. 704, Decision No. 14,588; Application of Kozak and Hetey, 40 id. 195, Decision No. 14,459).  To be considered wilful, respondent’s actions must have been intentional and with a wrongful purpose.  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 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).  Petitioner has failed to establish that DiGeronimo’s actions constituted a conflict of interest and/or a wilful violation or neglect of duty under law.

General Municipal Law §801 prohibits a board member from having an interest in any contract with the municipality of which he is an officer or employee, when such officer or employee, individually or as a member of a board, has the power or duty to negotiate, authorize or approve the contract.  General Municipal Law §802 sets forth exceptions to such prohibitions.  The contract central to this dispute is a collective bargaining agreement between the district and the MWTA, a teachers’ union, of which DiGeronimo’s spouse is a member and from which she receives benefits.  General Municipal Law §802(f) exempts from prohibited conflicts of interest a “contract with a membership corporation or other voluntary non-profit corporation or association”.  The association in this case is a non-profit teachers’ union, in which membership is completely voluntary.  It thus falls within the exception of General Municipal §802(1)(f) (Stetrine v. County of Suffolk, 66 NY2d 354; Application of Casazza, 32 Ed Dept Rep 462, Decision No. 12,886). 

Moreover, General Municipal Law §800(3) “explicity excludes a spouse’s employment contract from coverage under the conflict of interest provision and therefore, does not bar a board member from negotiating or voting on the contract of a spouse” (Appeal of Lombardo, 44 Ed Dept Rep 167, Decision No. 15,135; seeAppeal of Grinnell, 37 id. 504, Decision No. 13,914; Appeal of Behuniak & Lattimore, 30 id. 236, Decision No. 12,447).

Accordingly, I find that there was no conflict of interest when DiGeronimo, as board president, ratified the Agreement between the MWTA and the district, even though his spouse is a member of the MWTA (seeApplication of Casazza, 31 Ed Dept Rep 145, Decision No. 12,599).  Therefore, I find no basis to remove DiGeronimo. 

Finally, petitioner’s request to nullify the collective bargaining agreement must also be dismissed.  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 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).  While petitioner alleges that the Agreement was not in the best financial interests of the taxpayers or students, I do not find that petitioner met her burden of proof, i.e. that the board’s actions were improper.  Moreover, the board ratified the Agreement by an overwhelming majority, 8-1.  Therefore, I find no basis to nullify the agreement. 

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE

[1]Eight of the nine board members voted in favor of the ratification, with petitioner dissenting.