Application of LINDA WALLACE for the removal of Dr. Randy Richards as superintendent of schools of the Lake Placid Central School District.

Decision No. 16,479

(April 29, 2013)

Harris Beach, PLLC, attorneys for respondent, Douglas E. Gerhardt, Esq., of counsel

KING, JR., Commissioner.--Petitioner seeks the removal of Dr. Randy Richards (“respondent” or “Richards”) as superintendent of schools of the Lake Placid Central School District (“district”). The application must be denied.

On April 5, 2012, prior to the district’s annual budget vote, the district issued a press release which quoted Richards as stating that, if the district’s proposed2012-2013 budget was defeated, “the budget could be offered for another vote, with or without modification, but if it is defeated a second time, the district would have to reduce the budget by approximately $500,000” and that such reduction would “hurt programs for students.”

On April 17, 2012, petitioner asked Richards to explain how the $500,000 figure was derived and why a reduction in this amount would hurt student programs. Richards responded that the contingency budget would be discussed at that night’s board meeting and, if petitioner still had questions, he would be pleased to meet and answer them. Information presented at the board meeting indicated that the difference between the proposed 2012-2013 budget and a contingency budget would be $246,511. At the meeting, the board approved the proposed budget.

On May 15, 2012, district voters approved the proposed 2012-2013 budget. This application ensued.

Petitioner alleges that Richards’ statements regarding contingency budget reductions and their impact on student programs were inaccurate, misleading and designed to intimidate voters. Petitioner seeks a determination that Richards’ actions were not in the best interest of the district and were contradictory to his responsibility as superintendent, warranting his removal. Petitioner does not seek to overturn the results of the May 15, 2012 budget vote.

Respondent contends that the application for his removal must be dismissed because the petition does not include the notice required by §277.1(b) of the Commissioner’s regulations. Respondent also contends that petitioner failed to join a necessary party and that the matter is moot. Respondent asserts that the petition fails to state a claim, maintaining that he presented accurate information pertaining to the budget and that the press release is also accurate. Finally, Richards seeks a certificate of good faith pursuant to Education Law §3811.

I will first address several procedural matters. 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.

Respondent asserts that the board of education is a necessary party to the application and that petitioner’s failure to join the board as a respondent warrants dismissal. 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). In this case, because petitioner seeks only the removal of Richards as superintendent and does not seek any relief against the board as an entity, the latter is not a necessary party to petitioner’s application (Application of Tang, 48 Ed Dept Rep 507, Decision No. 15,932; Applications of Eisenkraft, 38 id. 553, Decision No. 14,092).

However, the application for Richards’ removal must be denied because the notice of petition is defective. Commissioner’s regulations require that the notice accompanying a removal application specifically advise the school officer that an application is being made for his or her removal from office (8 NYCRR §277.1 [b]). In this case, petitioner failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310. A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent(Appeal of Johnston, 50 Ed Dept Rep, Decision No. 16,184;Appeal of Hertel, 49 id. 267, Decision No. 16,021;Application of Barton, 48 id. 189, Decision No. 15,832).

Even if the application were not denied on procedural grounds, it would be denied on 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).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., 48id. 348, Decision No. 15,882).

The record indicates that respondent adequately explained the basis for his statements regarding the approximate $500,000 impact of a contingency budget in relation to current levels of district funding. Although petitioner may disagree with respondent’s approach, she has not demonstrated that respondent’s action was motivated by a wrongful purpose. Similarly, assuming, arguendo, that respondent’s statement that a budget defeat would “hurt programs for students” may have influenced voters in violation of Phillips v. Maurer, et al., (67 NY2d 672), petitioner failed to demonstrate that respondent’s statement was made in wilful violation of Phillips. Indeed, respondent avers that his statements regarding the budget “were not an attempt to...intentionally misrepresent a voter [sic] to sway him/her in supporting the proposed budget over that of a contingency.” Consequently, on this record, petitioner has established no basis for respondent’s removal.

To the extent that petitioner seeks a determination as to whether Richards’ actions were in the best interest of the district, the appeal must be dismissed. It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability,48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Moreover, Inote that district voters approved the proposed 2012-2013budget on May 15, 2012, and the budget vote has not been challenged. Thus, any request by petitioner for a determination of the impact of Richards’ statements upon voters is also deemed a request for an advisory opinion.

Although the application is denied for the foregoing reasons, one administrative matter remains. Respondent has requested that I issue him a certificate of good faith pursuant to Education Law §3811(1). Such certification is solely for the purpose of authorizing the board to indemnify respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a school district officer. It is appropriate to issue such certification unless it is established on the record that the requesting officer acted in bad faith (Applications of Lilly, 47 Ed Dept Rep 307, Decision No. 15,705; Application of Berman,46 id. 378, Decision No. 15,537; Application of Mazile,45 id. 378, Decision No. 15,356). In view of the fact that the application here is dismissed on procedural grounds and there has been no finding that respondent acted in bad faith, I hereby certify solely for the purpose of Education Law §3811 that respondent appears to have acted in good faith.

In light of this disposition, I need not address the parties’ remaining contentions. Nevertheless, I remind the district that boards of education must conduct all votes and elections in accordance with Phillips v. Maurer, et al.(67 NY2d 672).

THE APPLICATION IS DENIED.

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