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Decision No. 15,923

Appeal of ROBERT LAUB, JAMES MEZHIR, LOUIS M. PALMERI, and DAVID S. SCHAUBERT from action of the Board of Education of the Lewiston-Porter Central School District, Robert Weller, President, and Scott A. Stepien, Board Member, regarding a board resolution.

Decision No. 15,923

(May 22, 2009)

Norton/Radin/Hoover/Freedman and Webster Szanyi, LLP, attorneys for respondents, Andrew J. Freedman and Ryan G. Smith, Esqs., of counsel

MILLS, Commissioner.--Petitioners, all of whom are former members of the Board of Education of the Lewiston-Porter Central School District (“board”), challenge the action of the board denying their requests for defense and indemnification with respect to a lawsuit brought against them by respondent Scott A. Stepien (“Stepien”), and seek other relief.  The appeal must be sustained in part.

The factual background of this appeal may be found in four prior decisions (Appeal of Lilly, 47 Ed Dept Rep 268, Decision No. 15,692; Appeals of Stepien and Lilly, 47 id. 388, Decision No. 15,732; Appeal of Waechter, 48 id. ___, Decision No. 15,853; and Appeal of Palmeri, 48 id. ___, Decision No. 15,859).  The facts stated in those decisions will not be repeated here.

Following his restoration as a board member effective March 25, 2008, Stepien commenced an action on June 30, 2008, by filing a complaint in the United States District Court for the Western District of New York (seeAppeal of Waechter, 48 Ed Dept Rep ___, Decision No. 15,853).  Stepien sued seven defendants, including the four petitioners in this appeal, for alleged violation of his civil rights and for libel and slander.  By letters dated July 10 and 11, 2008, directed to the district clerk, petitioners timely requested that they be provided with defense and indemnification with respect to the Stepien lawsuit pursuant to Education Law §3811.

The board held a special meeting on July 17, 2008, to consider those requests.  Following an executive session of approximately an hour, the board voted to deny defense and indemnification to petitioners with respect to the Stepien action, but agreed to submit those requests to its insurance carrier to determine if their defense would be covered by the district’s insurance policies. 

Petitioners allege that the board’s action denying them defense and indemnification violated Education Law §3811, and was arbitrary and capricious.  They further argue that Stepien acted in violation of certain board policies and General Municipal Law Article 18, because he voted as a board member in favor of the resolution to deny them defense and indemnification with respect to an action in which he was an adverse party, and therefore had a conflict of interest.

Respondents generally deny any wrongdoing, and assert 13 affirmative defenses, including an argument that Education Law §3811 does not require defense and indemnification, and an argument that Stepien’s actions did not present a conflict of interest.

Under all the facts and circumstances, and taking into account my prior determinations, I find that the board’s denial of defense and indemnification with respect to the Stepien lawsuit was arbitrary and capricious.

Stepien’s complaint in the District Court invokes federal jurisdiction under 28 U.S.C. §1343(1),(2), and (3).  He alleges that all seven defendants, including the four petitioners herein, conspired against him while acting under color of State law.  The 15-page complaint recites a series of factual allegations which are essentially identical to the allegations made by Stepien and Edward Lilly in the prior appeals brought by them and cited above, and recited at length in Appeals of Stepien and Lilly (47 Ed Dept Rep 388, Decision No. 15,732). 

Based upon those facts, in the Lilly appeal, I granted a certificate of good faith to all respondents, including all four petitioners herein (seeAppeal of Lilly, 47 Ed Dept Rep 268, Decision No. 15,692, at p.269).  In the Stepien and Lilly appeal, I again granted a certificate of good faith to all answering respondents, including petitioners Laub and Mezhir herein (seeAppeal of Stepien and Lilly, 47 Ed Dept Rep 388, Decision No. 15,732, at p.394).  (Petitioners Palmeri and Schaubert were not parties to that appeal.)

In doing so, I not only determined that there was no evidence the recipients had acted in bad faith; but I implicitly found that they acted within the scope of their duties as board members (see Education Law §3811[c]: ”it shall be certified ... that he appeared to have acted in good faith with respect to the exercise of his powers under this chapter.”) (Emphasis added.)

Neither determination was the subject of a reopening pursuant to Commissioner’s regulation §276.8, or a challenge pursuant to Civil Practice Law and Rules, Article 78.  In view of my prior determinations, the action of the board denying defense and indemnification to these petitioners who have been granted certificates of good faith was arbitrary and capricious, and must be annulled.

With respect to the other relief sought by petitioners, concerning requests for an investigation and unspecified disciplinary actions, petitioners have not stated an adequate case for relief.  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). 

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

I must, however, comment on respondent Stepien’s actions in this matter.  When he became a member of the board of education, he took this oath or affirmation: “I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of [member of the board of education], according to the best of my ability.”  It would seem that his actions in this matter, in participating in the discussion and voting to deny indemnification to petitioners, were motivated by personal animus against petitioners rather than the best interests of the district.

Although I am not able to find any specific violation of General Municipal Law Article 18, or the board’s code of conduct, I nevertheless believe that Stepien, who is an attorney, should have recused himself.  Opinions of the Attorney General have made it clear that public officials should avoid circumstances which compromise their ability to make impartial judgments solely in the public interest, and that even the appearance of impropriety should be avoided in order to maintain public confidence in government (seee.g. 1990 Op Atty Gen 38; 1984 Op Atty Gen 160; 1984 Op Atty Gen 86). 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that board resolution NA-1, voted July 17, 2008, denying defense and indemnification to petitioners with respect to the action brought against them by Scott A. Stepien in the United States District Court for the Western District of New York, be, and it hereby is, annulled.

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