Application of JOAN L. SIMMONS for the removal of Carl P. Paladino as a member of the Board of Education of the City School District of the City of Buffalo.

Decision No. 16,596

(March 12, 2014)

Paladino, Cavan, Quinlivan & Pierce, attorneys for respondent, Daniel R. Metschl, Esq., of counsel

KING, JR., Commissioner.--Petitioner seeks the removal of Carl P. Paladino (“respondent”) as a member of the Board of Education of the City School District of the City of Buffalo (“board”). The application must be denied.

Petitioner, a resident of the district, asserts that respondent should be removed from his position as a member of the board pursuant to Education Law §306. Petitioner alleges that respondent “knowingly, continuously, and repeatedly” failed to abide by certain board policies,1 made public statements about school district issues without disclosing that such statements were not made on behalf of the board; has conflicts of interest by virtue of his affiliation with a real estate development company, “acquisition of existing school real estate properties,” and “advocacy for charter schools” which undermine the educational welfare of students; and violated the district’s code of ethics.

1 Neither party submitted copies of the relevant board policies.

Respondent denies any wrongdoing and asserts that he has “tried his utmost to discharge [his] duties faithfully, prudently, and in good faith.” He argues that the application should be denied as moot, untimely, and for lack of standing. Respondent also maintains that the application fails to state a wilful violation of law, neglect of duty, or wilful disobedience of a decision, order, or regulation of the Commissioner; that his actions were not wilful or intentional; and that his communications and speech are protected by the First Amendment. Finally, respondent requests costs, disbursements, and attorneys’ fees.

I must first address several procedural issues. Petitioner asks that I recuse myself from deciding this application in the event that I “feel unable to adjudicate this matter with complete and total impartiality” in light of my “involvement in overseeing the serious issues facing

 

Buffalo Public Schools.” Respondent does not object to petitioner’s request. Education Law §306 provides for an application to the Commissioner of Education when a petitioner seeks the removal of a board member or school officer. While recusal may be necessary in an adjudicatory proceeding before the Commissioner under certain circumstances, I find that no such circumstances exist in this case.2 Petitioner does not articulate any specific reasons or basis for my recusal other than the Commissioner’s general oversight of unspecified “serious issues” facing the district. I find that the Commissioner’s general supervisory authority over all school districts in the state (see Education Law §305[2]) does not compromise my impartiality or otherwise require my recusal in this case. Therefore, I am statutorily required to review this application and I decline to recuse myself (see e.g., Appeal of Wayne, 39 Ed Dept Rep 518, Decision No. 14,298).

2 Pursuant to Education Law §101 and §3.8(b) of the Rules of the Board of Regents, in the absence or disability of the Commissioner, the Executive Deputy Commissioner is authorized to carry out the functions and duties of the Commissioner as Acting Commissioner (see e.g., Appeal of Anderson, et al., 51 Ed Dept Rep, Decision No. 16,259).

Respondent asserts that petitioner lacks standing. Petitioner is a district resident and thus has standing to bring a removal proceeding pursuant to Education Law §306 (see Application of Wolpin, 52 Ed Dept Rep, Decision No. 16,489; Application of Wilson, 41 id. 196, Decision No. 14,663; Application of Eisenkraft, 38 id. 553, Decision No. 14,092). Therefore, I will not dismiss the application for lack of standing.

Respondent next asserts that the application must be dismissed as untimely. 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).

 

Petitioner commenced this application on November 25, 2013. According to the record, respondent has held his position on the board since July 1, 2013. While respondent raises untimeliness as an affirmative defense, he asserts only that “[e]ach and all of the events, assuming arguendo that they did in fact occur, took place more than thirty (30) days before the Petition was filed.” Other than this conclusory allegation, respondent sets forth no further facts or any reference to specific actions that are untimely. The burden is on respondent to establish his affirmative defense and, on this record, I find that respondent has failed to establish that the application is untimely (see Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636). In light of this disposition, I need not consider petitioner’s contention that the “‘time limit’ in this instance is not applicable” because the alleged misconduct is “on-going, repeated and continuous.”

Respondent also raises mootness as an affirmative defense. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). Respondent asserts that “the actions or events though denied, that form the basis of Petitioner’s action have been resolved.” As noted above, respondent has the burden of establishing his affirmative defense and has failed to do so on this record.

Nevertheless, the application must 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). To be considered wilful, respondent’s actions must have been intentional and with a wrongful purpose. In an appeal or removal application 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).

On this record, petitioner has failed to establish any facts sufficient to warrant the removal of respondent. Petitioner has not submitted any evidence or exhibits to support her claims and does not articulate any provision of law or decision, order, rule or regulation of the Board of Regents or the Commissioner of Education that respondent has wilfully violated or disobeyed.

It is well settled that, even if proven, violation of a board’s bylaws or policies, by itself, is not a sufficient basis for removal of a member of a board of education in a proceeding pursuant to Education Law §306 (Appication of Malgieri, et al., 52 Ed Dept Rep, Decision No. 16,482; Application of Vogel, 46 id. 481, Decision No. 15,570; 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). In any case, petitioner has not demonstrated that respondent wilfully violated the board policies at issue.

I find no merit to petitioner’s claim that respondent wilfully violated Board Policy #1120. According to petitioner, this policy prohibits board members from speaking about school district affairs without disclosing that the opinions expressed do not represent those of the board. Petitioner claims that respondent “has addressed the media, on numerous occasions in the past and continues to this date about matters involving the Board and its members without making it clear to the media that he was responding as an individual and not for the [board].” While petitioner alleges that such conduct “continues,” the only example she cites is respondent’s alleged attempt – prior to being elected to the board – to “block” the appointment of the superintendent. In an affidavit, respondent avers that he is a “high profile media figure” who regularly gives interviews to the media, but that he has never represented that his opinions were those of the entire board. He also avers that his opinions about the superintendent have been open, candid, and pre-exist his election to the board. As to the “numerous occasions” respondent has allegedly addressed the media as a member of the board, the record contains no evidence to support petitioner’s claim. Therefore, petitioner has failed to meet her burden.

Petitioner’s allegation that respondent wilfully violated Board Policy #1311 is similarly without merit. According to petitioner, Board Policy #1311 provides that

 

the educational welfare of students should be the greatest concern of board members, and that board members should avoid being placed in a position of conflict of interest and refrain from using a position on the board for personal or partisan gains. Petitioner claims that respondent has violated Board Policy #1311 by virtue of his involvement in a real estate development company, “acquisition of existing school real estate properties,” and “advocacy for charter schools.” Respondent denies petitioner’s claims and asserts that he is chairman of a real estate company that develops real estate, and that his company does not create charter schools. He further asserts that he is an “active participant and zealous advocate for children enrolled in” the district. In reply, petitioner claims that respondent’s company and its subsidiaries play a “major role” in the development of charter schools, for which respondent is an advocate. However, petitioner again fails to cite any facts or specific examples of how respondent’s affiliation with a real estate company constitutes a conflict of interest. Therefore, petitioner has failed to meet her burden.

Finally, petitioner’s claim that respondent wilfully violated Board Policy #6110, which, according to petitioner, lists the purposes of the board’s code of ethics, is without merit. Petitioner appears to broadly allege that respondent violated the code of ethics. However, other than citing Board Policy #6110, petitioner offers no facts or proof in support of that allegation or any or explanation of how respondent violated the policy. Petitioner has failed to meet her burden on this claim as well.

To the extent that petitioner appears to allege that respondent should be removed because he has lost her confidence and that of the public “in the integrity of the board to govern impartially and effectively,” the application must be denied for failure to carry her burden of proof. Petitioner merely asserts general and conclusory allegations about the diminishing “cooperation and participation” of the community and fails to provide any evidence to support her claim that these generalized allegations warrant respondent’s removal (see Application of Wolpin, 52 Ed Dept Rep, Decision No. 16,489).

Finally, respondent requests that I grant the costs, disbursements, and attorneys’ fees incurred in this application, and petitioner requests the same relief should such be granted to respondent. The Commissioner has no authority to award monetary damages, costs or reimbursements in an application pursuant to Education Law §306 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision

 

No. 15,888; Application of Andrews, 31 id. 453, Decision No. 12,697).

On the record before me, petitioner has not met her burden of demonstrating that respondent engaged in any wilful or intentional misconduct warranting his removal from office.

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

THE APPLICATION IS DENIED.

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