Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF ELMIRA for the removal of DIANNA BREWER-JACKSON as a member of the board.

Decision No. 16,051

(April 8, 2010)

Sayles & Evans, attorneys for petitioner, Conrad R. Wolan, Esq., of counsel

STEINER, Commissioner.--The Board of Education of the City School District of the City of Elmira (“petitioner” or “board”) seeks the removal of Dianna Brewer-Jackson (“respondent” or “Brewer-Jackson”) from her position as a member of the board.  The application must be denied.

Respondent has continuously been a member of the board since July 1, 2008, and her current term expires on June 30, 2011.

On or about September 3, 2009, respondent notified another board member that she had received third-hand information that an individual under contract with the district may have engaged in inappropriate contact with a student.  The board member subsequently notified the superintendent, who commenced an investigation and contacted the Elmira City Police Department for assistance.  By letter dated October 1, 2009, the board president notified respondent of the reporting requirements in Article 23-B of the Education Law.  This application ensued.

Petitioner alleges that respondent engaged in a wilful violation of the law and neglect of duty by failing to cooperate with an investigation and failing to disclose evidence in her possession regarding a potential risk to the children of the district.  Petitioner also alleges that respondent has neglected her duties by failing to evaluate items of business on their individual merit.  Petitioner requests that I remove respondent from the board. 

Respondent contends that petitioner failed to properly commence this appeal, in violation of the Public Officers Law.  Respondent also maintains that she disclosed certain information relating to the district in good faith and that the information came to her third-hand.  Respondent also complains that petitioner failed to provide her with ethnic data and services, despite repeated requests and asks for a certificate of good faith. 

Petitioner objects to respondent’s memorandum of law.  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).  Accordingly, I have not considered those portions of respondent’s memorandum of law that contain new facts and allegations that were not in the petition.

Turning to the merits, a 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).  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).

I must dismiss petitioner’s claim that respondent wilfully failed to cooperate with an investigation in this matter.  Petitioner claims that respondent failed to discuss the allegation with police investigators in an executive session of the board.  However, respondent states that she was reluctant to disclose information in executive session without a showing of a statutory authorization, or past practice of permitting a waiver of executive session rules of confidentiality.  Petitioner also claims that respondent failed to attend a meeting with the board president, the superintendent and the school attorney to discuss the allegation.  However, the record reveals that petitioner did not invite respondent to the meeting until 10:39 p.m. the night before and respondent alleges that she did not receive the invitation until 2:00 p.m. the next day, after the meeting had already begun.  Therefore, I find that petitioner failed to demonstrate that respondent wilfully failed to cooperate with an investigation.  Moreover, the record reveals that the board members, the board president, the superintendent and the police department were aware of the alleged perpetrator’s name and the alleged school building and there is nothing in the record to suggest that respondent withheld any additional information. 

Petitioner also claims that respondent wilfully failed to report the allegation.  Article 23-B of the Education Law requires certain school employees to report allegations of child abuse in an educational setting (Education Law §§1125-1133).  Education Law §1126 provides in pertinent part:

[w]here an oral or written allegation is made to a ... school board member ... that a child has been subjected to child abuse by an employee or volunteer in educational setting, such person shall upon receipt of such allegation:

(a)  promptly complete a written report of such allegation including the full name of the child alleged to be abused; the name of the child’s parent; identity of the person making the allegation and their relationship to the alleged child victim; the name of the employee or volunteer against whom the allegation was made; and a listing of the specific allegations of child abuse in an educational setting.[1]

Here, petitioner has failed to meet its burden to show that respondent wilfully failed to report an allegation in violation of Article 23-B.  First, petitioner did not offer any evidence that respondent had received required training regarding the reporting requirements of Article 23-B.  Pursuant to §100.2(hh)(2) of the Commissioner’s regulations, each school district is required to establish and to implement on an ongoing basis a training program regarding the procedures set forth in Article 23-B for teachers, administrators, various staff and school board members.  Petitioner has not demonstrated that respondent was offered or participated in such training.  As such, it is not clear whether respondent was initially aware of the reporting requirements.

While the board president notified respondent in letter dated October 1, 2009 of the Article 23-B reporting requirements and enclosed a reporting form, the letter also indicated that it was respondent’s “ultimate decision” to either disclose or not disclose any further information.  Thus, even at this point there was no clear directive by petitioner to respondent to file a written report.  Petitioner also failed to demonstrate that the “inappropriate contact” about which respondent had obtained information met the definition of child abuse contained in the mandatory reporting requirement of the Education Law.

Moreover, the record indicates that respondent substantially met the spirit of the law by promptly disclosing the identity of the alleged perpetrator and school building, which was forwarded to other board members, the board president, the superintendent and the police department, and the record fails to indicate that respondent had additional information to report.  In light of the foregoing, I find that petitioner failed to meet its burden of demonstrating that the manner in which respondent handled this matter constitutes a wilful violation or neglect of duty warranting her removal.  I do, however, strongly remind respondent of the obligations of a board member under Article 23-B of the Education Law and the importance of strictly abiding by it in the future.  I also urge petitioner to ensure that training of board members regarding Article 23-B is implemented on an ongoing basis.

Petitioner also alleges that at the September 16, 2009 board meeting, respondent voted “no” on the approval of six consecutive items found in the consent portion of the agenda based solely on her objection to the removal of a particular contract from the agenda for the evening.  Based on this allegation alone, I find that petitioner has failed to demonstrate that respondent wilfully neglected her duties.  The record reflects that respondent voted “no” on these items, but there is nothing in the record to suggest that she failed to consider each item on its own merit.

I must dismiss respondent’s FOIL allegations and her assertions that petitioner failed to publicly vote to commence this appeal, in violation of the Public Officers Law.  Sections 89 and 107 of the Public Officers Law vest exclusive jurisdiction over complaints alleging FOIL and Open Meetings Law violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442; Appeal of Hubbard, 45 id. 451, Decision No. 15,379).  Therefore, I have no jurisdiction to address the FOIL and Open Meetings Law allegations raised in this appeal.

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 she is an officer (seeApplication of the Bd. of Educ. of the Brentwood Union Free School District, 48 Ed Dept Rep 12, 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).

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

THE APPLICATION IS DENIED.

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