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Decision No. 16,246

Appeal of KARIN B. CAMPBELL and ROCCO LANZILOTTA from action of the Board of Education of the Westbury Union Free School District regarding board meetings and application for the removal of Pless M. Dickerson, Siela Bynoe, Rodney Caines and Leslie F. Davis as board members, Constance R. Clark-Snead as superintendent and reinstatement of Rod Bailey as board member.

Decision No. 16,246

(June 8, 2011)

Jaspan Schlesinger, LLP, attorneys for respondents, Lawrence J. Tenenbaum, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioners seek the removal of Pless M. Dickerson, Siela Bynoe, Rodney Caines and Leslie F. Davis as members of the Board of Education of the Westbury Union Free School District (“board”) and Constance R. Clark-Snead (“Clark-Snead”) as superintendent of the Westbury Union Free School District (“district”).  They request reinstatement of Rod Bailey as a board member.  Petitioners also seek nullification of all board meetings and actions taken on July 6, 7 and 9, 2010.  The appeal must be dismissed and the applications must be denied.

Petitioners currently are members on the board.  Prior to July 2010, petitioner Karin B. Campbell (“Campbell”) served as board president.  At the district’s annual election on May 18, 2010, Siela Bynoe, Rodney Caines and Leslie F. Davis were elected to fill three vacancies commencing July 1, 2010.  On June 7, 2010, prior to the new members taking office, the sitting board majority (four members) passed a resolution declaring the other three board seats vacant because each board member in those seats allegedly missed three consecutive board meetings without a valid excuse (see Education Law §2109).  On June 21, 2010, the remaining board appointed Rod Bailey (“Bailey”) to fill one of the vacancies.

Respondent Pless M. Dickerson (“Dickerson”), one of the members whose seat was declared vacant, appealed the board’s action.[1] On June 21, 2010, I issued a stay reinstating Dickerson pending a final decision on his appeal.

In late June 2010, Clark-Snead received letters from the board stating that she was in violation of her employment contract because she failed to provide the board with written notice by May 31, 2010, regarding the continuation of her contract.  Although a hearing was scheduled for July 30, 2010, the parties state that the hearing was never held.

On July 4, 2010, prior to the swearing in of new members, the board, with Campbell acting as president (“old board”), convened and adjourned its previously scheduled July 7 reorganization meeting to July 14, 2010.  On July 6, the three newly elected members took their oath of office administered by petitioner Lanzilotta (“Lanzilotta”), who was also the district clerk at the time.  Thus, the board now consisted of Campbell, Lanzilotta, Dickerson, Siela Bynoe, Rodney Caines, Leslie F. Davis and Stanton Brown (“new board”).  Later that same day, Dickerson requested a special meeting of the board to be held on the evening of July 7, 2010.

At the July 7 special meeting, the new board rescinded the prior July 4 resolution (rescheduling the reorganization meeting to July 14, 2010) and affirmed that it would be held that evening, as originally scheduled.  The new board also rescinded the resolution passed on June 7, 2010 which declared three seats vacant, including Dickerson’s, due to absences.  The recision was passed by four votes, one of which was Dickerson’s.[2] Also at the special meeting Mary Lagnado was appointed district clerk, replacing Lanzilotta.  A second special meeting was held on July 9, 2010, with all members present except Campbell.  At that meeting, the new board re-approved all resolutions previously approved on July 7.

Although the new board was constituted and began conducting district business as of July 7, 2010, the old board, with Campbell as purported president, continued to meet and hold themselves out as the board.  Therefore, on July 29, 2010, the new board sought and obtained a Temporary Restraining Order from Nassau County Supreme Court ordering Bailey, as well as another former board member, to cease holding themselves out or acting as board members.  Petitioners commenced this appeal on August 5, 2010.

Petitioners assert that the July 6, 2010 administration of the oath of office to the newly elected board members was improper.  Petitioners also assert that the board meetings on July 6, 7 and 9, 2010 were not correctly noticed, were conducted without Campbell’s knowledge as president and, thus, were invalid.  Petitioners seek nullification of the meetings and all actions taken at them.  They seek Dickerson’s removal, as well as the removal of “all acting trustees found to have participated in . . . the [July 9, 2010] vote to remove charges against [Dickerson].”  Additionally, petitioners contend that Clark-Snead is in violation of her employment contract and seek her removal as superintendent.  Finally, petitioners request reinstatement of Bailey as a board member.

Respondents assert that the petition is not verified, was not properly served on Dickerson or Clark-Snead, and fails to name and serve a necessary party.  Respondents also contend that I lack jurisdiction over claims related to the Open Meetings Law and that petitioners lack standing to request Bailey’s reinstatement.  Finally, respondents maintain that petitioners did not meet their burden of proof to establish that any named respondent should be removed from office.

I must initially address several procedural issues.  Respondents challenge the scope of petitioners’ reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondents assert that the petition is not properly verified as required by §275.5 of the Commissioner’s regulations.  However, the petition submitted to my Office of Counsel contained the requisite verification.  While petitioners should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioners are not represented by counsel and my Office of Counsel received a verified petition (Appeal of Carangelo, 49 Ed Dept Rep 217, Decision No. 16,006; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

The appeal must be dismissed and the application denied as against Dickerson and Clark-Snead for lack of personal jurisdiction because they were not personally served with the petition.  Petitioners’ reply states that “after a diligent search and attempt” to deliver the petition to Dickerson and Clark-Snead, a copy of the petition was personally served on another trustee of the board and also was mailed to them.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at respondent’s residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the Commissioner.  Petitioners did not comply with §275.8(a) of the regulations, nor did they seek permission to serve the petition by mail after alleged attempts to personally serve Dickerson and Clark-Snead failed.

Respondents also argue that the appeal must be dismissed for failure to join Bailey as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  With respect to Bailey, petitioners have made no allegations that he acted improperly, nor do they seek specific relief against him, rather they seek to have his temporary seat on the board reinstated.  Thus, Bailey would not be adversely affected by a determination of an appeal in favor of petitioners and is not a necessary party in this appeal.

However, I note that petitioners also challenge the propriety of the administration of the oath of office on July 6, 2010 to Siela Bynoe, Rodney Caines and Leslie F. Davis.  Petitioners also seek the removal of “all acting trustees found to have participated in . . . the [July 9, 2010] vote to remove charges against [Dickerson].”  Petitioners failed to name Siela Bynoe, Rodney Caines or Leslie F. Davis in the caption or personally serve them with a copy of any notice and petition.  Consequently, none of those individuals have appeared or served an answer.  Because each of them would be adversely affected should petitioners prevail on the above-noted claims, they are necessary parties and failure to join them warrants dismissal of the appeal and denial of the application as against them.

Respondents assert that petitioners lack standing to request Bailey’s reinstatement.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Respondents argue that petitioners are not directly affected by any action which resulted in Bailey’s replacement on the board and thus are not aggrieved.  Petitioners have not established the requisite personal harm and, thus, lack standing to maintain the appeal as related to Bailey.

Turning to the merits, petitioners assert that the administration of the oath of office on July 6, 2010 to the newly elected board members constituted a board meeting which took place without petitioner Campbell’s knowledge and, thus, was improper.  They also contend that Lanzilotta, as district clerk, was unwilling to administer the oaths and was intimidated.  Respondents maintain that no board meeting took place on that date and further deny the allegations with respect to Lanzilotta.

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).

There is no dispute that Siela Bynoe, Rodney Caines and Leslie F. Davis were duly elected to the board on May 18, 2010.  The three newly elected members took office effective July 1, 2010 and were required to take and file an oath of office with the district clerk (Public Officers Law §10).  The failure to properly take and file an oath of office within 30 days after the commencement of the term of office to which the member is elected causes the office to become vacant (Public Officers Law §30[1][h]).  Although the oaths are often administered at a board’s reorganization meeting, this is not a requirement (Education Law §§1701, 2502[9][o]).  Nor is there any requirement that the board president know that the oaths are being administered and/or participate in the administration of the oaths (Public Officers Law §10).  Indeed, petitioners cite no legal authority for that assertion.

Moreover, contrary to petitioners’ claim, the record is devoid of any evidence that a board meeting was conducted on July 6, 2010.  Nor do petitioners offer proof that Lanzilotta was intimidated into administering the oaths of office to the new members.  In contrast, respondents submit affidavits from the new members stating that the mood on July 6, 2010 was “pleasant, light and collegial.”  Thus, I find no impropriety in the administration of the oaths of office on July 6, 2010.

Petitioners also claim that the special board meetings held on July 7 and 9, 2010 were scheduled without the “knowledge and consent” of Campbell as board president and, therefore, were improper.  Pursuant to Education Law §§1606(3) and 1710, any school board member of a union free school district is authorized to call a special meeting of the board of education, as long as notice is given to the other board members at least 24 hours in advance (Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Matter of Felicio, et al., 19 id. 414, Decision No. 10,190, judgmt grtd dis pet to rev subnom. Arthus v. Amsbach, Sup. Ct., Albany Co. [Williams, J.] n.o.r., 4/18/80).  Additionally, district policy states that “special meetings of the Board of Education must be called as requested by a member of the Board, making such a request to the Board President” (emphasis added).  Dickerson submits an affidavit stating that he abided by the board’s usual protocol, requesting that Lanzilotta, as district clerk, disseminate the request for a special meeting to all board members, including Campbell.  Petitioners do not submit any evidence that this is not the usual protocol when calling a special meeting.

Petitioners do not assert that they failed to receive timely notice of the meetings and I note that Lanzilotta attended both meetings, as did all other board members, except Campbell.  The record fails to establish that the meetings were not properly called in accordance with Education Law or board policy.

To the extent petitioners allege that they were held in violation of Open Meetings Law, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Finally, petitioners failed to demonstrate that Dickerson’s votes on the July 7, 2010 recision of the prior resolution declaring three seats vacant or his July 9, 2010 ratification of that action constituted a conflict of interest warranting nullification.  The conflict of interest provisions of the General Municipal Law define interest as "a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves" (General Municipal Law §800[3]).  Petitioners do not allege, nor does the record indicate, that Dickerson would benefit financially when he voted on the resolutions.  Under these circumstances, I do not find that his vote constituted an impermissible conflict of interest.

Although the appeal is dismissed and the application denied, I am compelled to comment on the measures undertaken by the old board in an attempt to maintain board control.  The actions it undertook were a transparent attempt to subvert the will of district residents who voted three new board members into office and would have jeopardized the proper functioning of the board.  I urge the duly elected board to focus on governing the school district for the benefit of district residents and bring this political turmoil to an end.

Respondents requested a certificate of good faith pursuant to Education Law §3811(1).  It is appropriate to issue such certification unless it is established on the record that the respondent acted in bad faith (Application of Wornum, 50 Ed Dept Rep __, Decision No. 16,166; Appeal of Lilly, 47 id. 268, Decision No. 15,692; Application of Berman, 46 id. 378, Decision No. 15,537).  Since there has been no such finding, I find that respondents are entitled to receive a certificate of good faith.

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

THE APPEAL IS DISMISSED AND THE APPLICATIONS DENIED.

END OF FILE.

[1] The other two members’ terms were due to expire on June 30, 2010.

[2] As a result of the recision, on July 13, 2010, Dickerson withdrew his appeal.