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Decision No. 16,593

 

 Application of DANIEL J. CHIACCHIA for the removal of Sally Stephenson and Holly Balaya as members of the Board of Education of the Hamburg Central School District.

Decision No. 16,593

(March 10, 2014)

Murphy Meyers, LLP, attorneys for respondents, Margaret A. Murphy, Esq., of counsel

King, Jr., Commissioner.--Petitioner seeks the removal of Sally Stephenson and her daughter, Holly Balaya (collectively, "respondents"), as members of the Board of Education of the Hamburg Central School District (the “board”) based on alleged violations of the district’s bylaws and policies. The application must be denied.

Petitioner’s removal application is another in a series of legal proceedings affecting the Hamburg Central School District. Insofar as is relevant to the instant appeal, Sally Stephenson’s daughter, Lindsey Stephenson, was appointed by the board to a probationary teacher position in August 2009. On September 21, 2010, the board voted to terminate Lindsey Stephenson’s probationary appointment and remove her from the preferred eligibility list. Shortly thereafter, an unauthorized audio recording of the executive session of the September 21, 2010 board meeting surfaced. Lindsey Stephenson’s termination resulted in various civil and administrative litigations initiated by Sally Stephenson, Lindsey Stephenson and Martha Kavanaugh (“Kavanaugh”), who is a teacher in the district and is alleged by petitioner to be Lindsey Stephenson’s domestic partner.1

1 For example, the termination of Lindsey Stephenson’s probationary appointment was the subject of Appeal of Stephenson, 51 Ed Dept Rep, Decision No. 16,329; and Sally Stephenson’s unsuccessful attempt to remove the district’s interim superintendent and board president from office was the subject of Application of Stephenson, 51 id., Decision No. 16,330.

In May 2011, respondent Holly Balaya (“Balaya”), another daughter of Sally Stephenson, was elected to the board. Sally Stephenson was elected to the board in May 2012.

Following Sally Stephenson’s election, but prior to her taking office as a board member, a lawsuit was commenced in New York State Supreme Court by the board, the district and then-interim superintendent Steven Achramovitch (“Achramovitch”) against Sally Stephenson,

 

Lindsey Stephenson, and Kavanaugh. The suit alleged that the defendants illegally recorded the executive session of the board’s September 21, 2010 meeting (the “illegal taping lawsuit”).

Around this time, then-board president Dr. Joan Calkins (“Dr. Calkins”) authored an open letter that was posted on the district’s website (the “Open Letter”). The Open Letter detailed the history and cost of the litigation commenced by Sally Stephenson, Lindsey Stephenson, and Kavanaugh, and the need to commence the illegal taping lawsuit. The Open Letter led to the filing of a New York State Division of Human Rights complaint by Kavanaugh against Achramovitch and Dr. Calkins (the “Human Rights complaint”).

Although petitioner’s application contains a lengthy historical narrative detailing the district’s contentious climate dating back to approximately 2003, the gravamen of his complaint is that respondents violated the district’s conflict of interest rules and various district policies when they participated in certain votes as members of the board: (1) on July 2, 2013 relating to the illegal taping lawsuit; (2) on July 30, 2013 relating to a grievance filed by Kavanagh (the “Kavanagh grievance”); and (3) on November 12, 2013 relating to the Human Rights complaint and the contract of the school district’s attorney, who is an alleged friend of Sally Stephenson (the “attorney contract”). Specifically, petitioner contends that respondents violated §6110(3)(e) of the district’s ethics policy, which states that a member of the board shall “publicly disclose on the official record the nature and extent of any direct or indirect financial or other interest he/she has” in a resolution before the board (“section 6110”).

Respondents contend that petitioner is not an aggrieved party and that any allegations arising out of conduct that occurred prior to October 20, 2013 are untimely. Respondents further argue that they did not have any conflict of interest relating to the November 12, 2013 board meeting and, therefore, did not violate any ethical rules.

I must first address the procedural issues. 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 claim that petitioner is not an “aggrieved party.” An individual may not maintain an appeal pursuant to the Education Law 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). The record indicates that petitioner is a district resident and thus has standing to bring a removal proceeding pursuant to Education Law §306 (see e.g., Application of Dunham, et al., 42 Ed Dept Rep 298, Decision No. 14,860).

Respondents, however, correctly contend that the application must be denied as untimely as to any alleged conduct that occurred prior to October 20, 2013. 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).

This proceeding was commenced by personal service on November 21, 2013. Consequently, to the extent petitioner contends that Sally Stephenson and Balaya should have disclosed alleged personal interests and/or been prohibited from voting on certain matters relating to the illegal taping lawsuit and the Kavanagh grievance at the July 2, 2013 and July 30, 2013 meetings of the board, these claims are barred by the 30-day limitation period (Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810).

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). Here, petitioner has not carried his burden of proving that he brought this

 

application within 30 days of his discovery of the alleged misconduct.

Petitioner claims that, in December 2013, a judge “issued an order ... which unsealed transcripts from another legal proceeding” in which Kavanaugh described her relationship with respondents and Lindsey Stephenson and revealed that she knows respondent Stephenson personally and that they are friends. Petitioner has submitted the court order as part of this record and argues that, under such circumstances, his delay in commencing the application should be excused for good cause shown.

However, in his application, which was commenced by personal service on November 21, 2013, prior to the court’s order unsealing the transcripts, petitioner specifies the conduct to which he objects and alleges various conflicts of interest involving respondents based on their familial relationships as well as their relationships and connections with Kavanaugh. Indeed, petitioner asserts in the application that Kavanaugh “is the domestic partner” of Lindsey Stephenson, who is respondent Stephenson’s daughter and respondent Balaya’s sister.

Therefore, petitioner clearly had knowledge of these familial relationships at the time he brought this application and he has neither alleged nor proven when he discovered that these familial relationships existed. The subsequent unsealing of transcripts by the court provided additional evidence that was properly submitted with the reply in this proceeding, but it does not prove when petitioner discovered the alleged misconduct that is the subject of this application.

Consequently, the application must be dismissed as untimely as to any alleged conduct that occurred prior to October 20, 2013.

Turning to the merits of the petition as it relates to alleged conflicts regarding the November 12, 2013 board meeting, the application must be denied.

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 application for removal brought pursuant to Education Law §306, 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; Application of Dunham, et al., 42 Ed Dept Rep 298, Decision No. 14,860; Application of Downing, 40 id. 396, Decision No. 14,509). Pursuant to §277.1(a) of the Commissioner’s regulations, the application “must distinctly state the willful violation of law, neglect of duty, or wilful disobedience of a decision, order or regulation of the commissioner charged against the officer....”

Petitioner, who is an attorney, alleges in his application only that respondents violated board bylaws and policies, including section 6110, in their conduct at the November 12, 2013 board meeting when they debated and voted upon various resolutions without publicly disclosing their alleged interests in such resolutions. However, it is well settled that, even if proven, violation of a board’s bylaws or policies, by itself, does not constitute sufficient grounds for removal of a member of a board of education in a proceeding pursuant to Education Law §306 (Application of Dunham, et al., 42 Ed Dept Rep 298, Decision No. 14,860; Application of Michalski, 33 id. 505, Decision No. 13,130; Matter of McSweeney, 20 id. 397, Decision No. 10,456; Matter of the Application to Reopen the Appeal of Seidenberg, et al., 14 id. 42, Decision No. 8,857).

To the extent petitioner claims that Sally Stephenson and Balaya violated the conflict of interest provisions of Article 18 of the General Municipal Law because they had friendships or personal relationships with the subjects of the resolutions voted on at the November 12, 2013 board meeting, petitioner has failed to establish facts sufficient to warrant the removal of respondents pursuant to Education Law §306 on this basis.

The conflict of interest provisions of the General Municipal Law define an 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]). No provision of the General Municipal Law deems a board member to have an automatic interest in a contract between a friend and the district which the board member serves (see General Municipal Law §800[3]). An interest would arise only if respondents were to derive a direct or indirect pecuniary or material benefit from the resolution (see Opns St Comp No. 83-40).

Petitioner, however, has not alleged or established that respondents received any pecuniary or material benefit from their actions; he merely alleges that they had undisclosed personal relationships relating to their votes.

 

Petitioner cites no authority for the proposition that friendship or social relationship, by itself, creates a conflict of interest. Indeed, not every personal or business relationship requires disclosure or recusal (see Opns St Comp No. 91-48). For example, in Appeal of Lawson (42 Ed Dept Rep 210, Decision No. 14,826) the Commissioner determined that no conflict of interest existed where a board member voted for both his own adult son’s coaching appointment and for the appointment of the teacher who recommended his son. Similarly, in Application of Kavitsky (41 Ed Dept Rep 231, Decision No. 14,672) it was held that no conflict of interest existed where a board member failed to disclose that his adult son worked for an architectural firm which contracted with the district.

Accordingly, petitioner has failed to sustain his burden of demonstrating a clear legal right to the relief requested and his application must be denied (8 NYCRR §275.10; Application of Kavitsky, 41 Ed Dept Rep 231, Decision No. 14,672).

Although the application must be denied as described above, I note that the history of dissention and conflict affecting the Hamburg Central School District is well documented by the numerous legal actions in recent years involving the district. The record before me illustrates all too well how conflict and an atmosphere of this nature can interfere with the board’s ability to govern the affairs of district and can undermine the public’s confidence in its elected school board. I strongly urge respondents and the board to engage in constructive discussions – not only as a board, but also with district staff and the community – aimed at eliminating conflict and achieving the best possible governance of the school district.

THE APPLICATION IS DENIED.

END OF FILE