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Decision No. 15,921

Application of LISA A. KELTY for the removal of ROBERT CONDELA as a member of the Board of Education of the Island Trees Union Free School District.

Application of LISA A. KELTY for the removal of CARL BONSIGNORE as a member of the Board of Education of the Island Trees Union Free School District.

Application of LISA A. KELTY for the removal of PETER RAY as a member of the Board of Education of the Island Trees Union Free School District.

Decision No. 15,921

(May 22, 2009)

Hamburger, Maxson, Yaffe, Wishod & Knauer, LLP, attorneys for respondents, Richard Hamburger, Esq., of counsel

MILLS, Commissioner.--In three separate applications, petitioner, a resident of the Island Trees Union Free School District, seeks to remove Robert Condela, Carl Bonsignore, and Peter Ray from their positions as members of the board of education of the district.  The petitions allege identical conduct on the part of all three respondents, so the applications are consolidated for decision.  The applications must be denied.

The petitions allege that respondents were members of the board during the months of February and March, 2001, when the board approved the acceptance of a donation of securities, and used that donation to purchase discounted furniture and equipment from a failed political campaign.  Apparently because of a slight difference between the price stated in the bill of sale and the amount of the district’s check, petitioner alleges that “it is possible that a misappropriation of funds took place in this instance,”  even though the amount of the district’s check was the lower figure. 

The petitions further allege that respondents were members of the board in April 2005 and June 2006, when an employee of the New York State Department of Environmental Conservation issued memoranda to a superior regarding lead contamination at a district school.  Petitioner alleges that each respondent had a responsibility to notify her of the alleged serious health hazards at the school, but failed to do so. 

Respondents admit that they were members of the board of education at the times alleged in the petitions, but deny any wrongdoing, and point out that the alleged health hazard has been dealt with, and is being dealt with currently, by three State agencies, the United States Environmental Protection Agency, and the Nassau County Department of Health.  Respondents assert several affirmative defenses, including assertions that the petitions fail to state a clear and concise statement of petitioner’s claim, and that the applications are untimely.

The applications must be denied as 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 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).  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 Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).

All of the transactions alleged in the petitions occurred more than two years prior to the commencement of the applications.  Although the Commissioner has the discretion to excuse a failure to commence an appeal within the time specified for good cause shown, Commissioner’s regulation §275.16 requires that the “reasons for such failure shall be set forth in the petition.”

Here, petitioner has made no statement in the petitions which would either explain or justify the long delay in making these applications.  As a result, there is no basis for exercising my discretion. 

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

THE APPLICATIONS ARE DENIED.

END OF FILE