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Decision No. 16,216

Application of WILLA POWELL for the removal of Cynthia Elliott as a member of the Board of Education of the City School District of the City Rochester.

Decision No. 16,216

(March 31, 2011)

STEINER, Commissioner.--Petitioner, a member of the Board of Education of the City School District of the City of Rochester (“board”), seeks the removal of a fellow board member, Cynthia Elliott (“respondent”), for the alleged “wilful and substantive disclosure of confidential information” acquired in the course of her official duties.  The application must be denied.

On November 30, 2009 each board member received a draft report of an “Audit of Selected Financial Transactions” (“draft report”) by the Office of the State Comptroller (“Comptroller”).  The bottom of each page stated: “*DRAFT – NOT INTENDED FOR EXTERNAL DISTRIBUTION* CONTAINS NON-FINAL, INTRA-AGENCY AND/OR INTER-AGENCY MATERIALS THAT MAY BE EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW.”  Each individual copy of the draft report was coded with a unique identifier.  On December 2, 2009, the contents of the draft were reported in a local newspaper with a link to the full draft report.  Sometime thereafter, the Comptroller’s office notified the board president that the published draft report bore the identifier designated on respondent’s copy of the draft report.

Petitioner asserts that respondent provided the draft report to the newspaper.  Petitioner requests a determination that the draft report was confidential and not considered a public document at the time of disclosure.  Petitioner seeks respondent’s removal for improperly disclosing confidential information acquired in the course of her official duties. 

Respondent contends that the application is untimely. Respondent also maintains that the application should be dismissed because petitioner has not established that respondent disclosed the draft report and, even if she had, that such conduct did not constitute wilful misconduct or neglect of duty.

Initially, I must address the contents of the record in this appeal.  In this case, respondent served two answers, the first of which was timely submitted and the second of which was not.  Since the second answer was neither timely submitted in accordance with §275.13(a) of the Commissioner’s regulations nor in compliance with the regulations relating to additional pleadings (8 NYCRR §275.3[b]), I have not considered it in this appeal.  Since I have not considered respondent’s second answer, I have only considered petitioner’s supplemental reply to the extent it objects to its submission.

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  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).  The draft report was published on December 2, 2009, and the record indicates that the board received the letter from the Comptroller’s office on January 4, 2010.  Even if the 30-day time period were measured from December 2, 2009, which is the earliest possible date, the last day to commence the appeal would have fallen on Friday, January 1, 2010, a legal holiday.  Section 275.8(a) of the Commissioner’s regulations provides in pertinent part, “if the last day for service falls on a legal holiday, service may be made on the following business day“.  Respondent was personally served on the next business day, Monday, January 4, 2010.  Therefore, I decline to dismiss the appeal as untimely.          

Turning to the merits, a member of the board of education or a school officer 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 school officer 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 Commissioner of Education (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729). To be considered wilful, respondent’s actions must have been intentional and with a wrongful purpose.  Removal from office is a drastic remedy that should be taken only in extreme circumstances (Application of Tang, 48 Ed Dept Rep 507, Decision No. 15,932; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of Giardina, 46 id. 524, Decision No. 15,583).  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner has not met her burden of proving that respondent engaged in behavior constituting a wilful violation or neglect of duty requiring her removal from office.  The fact that the draft report released to the media contains a code linked back to the copy intended for respondent, does not in itself prove that respondent released it, much less that she intentionally released it.  In fact, respondent denies that she released the document.  Petitioner summarizes her understanding of the chain of custody of the 11 copies of the draft report from the time they were delivered by the Comptroller’s office to the district clerk and the time the copies were delivered to the individual board members.  However, petitioner has failed to provide any affidavits supporting her allegations regarding the custody and distribution of the copies that would establish that respondent was the only person who could have released the draft report.  Therefore, petitioner has failed to demonstrate that respondent actually engaged in any action warranting her removal.

In light of the above disposition, I need not determine whether the document, or any portion of it, was confidential[1].  Nor need I address the parties’ remaining contentions.

THE APPLICATION IS DENIED.

END OF FILE.

[1] I note, specifically, that petitioner has not established that the audit information was learned in a properly convened executive session of the board (seeApplication of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315).