Appeal of CHARLES MAHONEY from action of the Board of Education of the Hamburg Central School District and Matthew Dils regarding attendance at board of education meetings.

Decision No. 16,605

(April 11, 2014)

 

Harris Beach, PLLC, attorneys for respondents, Tracie L. Lopardi, Esq., of counsel

KING, JR., Commissioner. -- Petitioner, a resident of the Hamburg Central School District, challenges board member Matthew Dils’ (“Dils”) failure to attend four successive meetings of the Board of Education o f the Hamburg Central School District (the “board” and collectively with Dils, “respondents”) and makes an application for the removal of Dils on that basis . The appeal must be dismissed and the application denied .

Petitioner contends that Dils violated E ducation Law §2109 by failing to provide a good and valid excuse for his absences from four successive board meetings held on February 28, March 6, March 13, and March 20, 2012. Petitioner argues that this represents a wilful neglect of duty warranting Di ls’ removal as a member of the board. Although the petition contains numerous claims regarding audits conducted by the New York State Comptroller of the Hamburg Central School District (the “district”) and vague allegations of slander, petitioner seeks on ly a determination that Dils “has broken” Education Law §2109 and requests that he be removed from the board as a result.

Respondents assert that the appeal must be dismissed as untimely because all allegations set forth in the petition, with the excepti on of those related to the March 20, 2012 board meeting, occurred more than 30 days before the appeal was commenced on April 19, 2012. Respondents also argue that the appeal must be dismissed because petitioner failed to comply with the special notice req uirements for applications pursuant to Education Law §306 seeking the removal of a board member (8 NYCRR §277.1[b]). Respondents further contend that petitioner’s allegations are based upon his “inaccurate beliefs and/or perceptions” which are alleged to b e the result of his 2 personal disgruntlement with the board¹ and, in any event, are unfounded because the board determined that Dils offered a good and valid excuse for each absence.

I must first address several procedural issues. In further support of hi s appeal, petitioner has submitted what purports to be a “Verified Reply” (the “reply”) containing factual allegations, legal conclusions and evidentiary exhibits. The purpose of a reply is to respond to new material or affirmative defenses set forth in a n 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 defe nses set forth in the answer.

By letter dated July 31, 2012, respondents requested permission pursuant to 8 NYCRR §276.5 to submit certain additional affidavits and exhibits in response to petitioner’s reply. Additional affidavits, exhibits and other supp orting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided ( Appeals of Gonzalez , 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al. , 48 id . 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims origina lly raised in the appeal ( Appeals of Gonzalez , 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al. , 48 id . 193, Decision No. 15,833).

On November 2, 2012, my Office of Counsel received undated correspondence from petitioner in which he ob jected to respondents’ July 31, 2012 request to submit additional documents. Additionally, on November 5, 2012, my Office of Counsel received an affirmation from respondents’ attorney

¹ In July 2003, the board rescinded petitioner’s tenure which was the subject of a prior appeal ( Appeal of Mahoney , 43 Ed Dept Rep 483, Decision No. 15,060; petition to review dismissed Mahoney v. Mills, et al. , 7 Misc3d 1006(A); aff’d 29 AD3d 1043; lv to app den 7 NY3d 708). Respondents also claim that petitioner was interviewed by the board to fill a vacancy in 2011 and was not selected.

3 in which she requested that I not consider petitioner’s November submis sion and that I consider additional documents submitted on respondents’ behalf pursuant to §276.5. I have reviewed all of the parties’ submissions and will consider them only to the extent that they are relevant to the claims originally raised in this app eal and application , including the affirmative defenses raised in respondents’ verified answer and petitioner’s reply thereto ( see e.g. , Appeal of Zayas , 53 Ed Dept Rep, Decision No. 16,546).

Turning to respondents’ affirmative defenses, an appeal to the C ommissioner 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).

Education Law §2109 provides, in relevant part, that a board of education member who neglects to attend three successive meetings of the board without rendering “a good and valid excuse” to the other me mbers of the board vacates his office by refusal to serve. By its own terms, any cause of action that may exist under Education Law §2109 would not accrue until the third successive missed meeting. Here, respondents do not dispute that Dils missed four s uccessive board meetings on F ebruary 28, 2012, March 6, 2012, March 13, 2012 and March 20, 2012. Petitioner commenced this appeal and application by personal service upon respondents on April 19, 2012, and the appeal and application would have been untime ly if the third successive missed meeting claimed by petitioner occurred on March 13, 2012. However, petitioner also alleges that Dils missed the March 20, 2012 meeting, which occurred within 30 days of April 19, 2012 and was the third successive missed m eeting measured from the March 6, 2012 board meeting. Therefore, I will not dismiss this claim as untimely ( 8 NYCRR §275.16) . However, I note that, to the extent petitioner attempts to challenge conduct and actions that occurred more than 30 days prior t o the commencement of this appeal and application , such claims are untimely.

The application for removal , however, must be dismissed for petitioner’s failure to comply with the special notice requirements for removal applications brought pursuant to Educat ion Law §306. Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition expressly advise the respondent that an application is being made to remove him or her from office (the “special notice”). Here, attached to petitioner ’ s application is the notice of petition required by 8 NYCRR §275.11(a) for appeals commenced under Education Law §310 (the “§310 notice of petition”).

In his reply, petitioner contends that although his appeal and application did include the notice for com mencing a §310 appeal and did not include the special notice for an application for removal , he prepared the special notice as a “separate document” that was served upon respondents, and filed with the Commissioner, together with the petition. In support o f his claim, petitioner has included a copy of the purported special notice as an exhibit to his reply, together with an affidavit from the person who notarized the document and an affidavit from the process server saying that both notice documents were se rved upon respondents and mailed to the Commissioner.

Dils and former district clerk Gregg Davis, however, have submitted affidavits averring that the special notice - which appears to be in a different font than that used in petitioner’s §310 notice of petition and verified petition – was not included with the documents served upon them. In addition, I note that, despite the process server’s affidavit to the contrary, the special notice was not included with the petition and exhibits mailed to , and file d with , my Office of Counsel.

On the totality of the record before me, therefore, I cannot conclude that petitioner included with the petition the special notice required by 8 NYCRR §277.1(b). It is well - settled that a notice of petition which fails to c ontain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the respondent ( Application of Carrion , 50 Ed Dept Rep, Decision No. 16,228; Application of Vendel , 49 id . 361, Decision No. 16,050). It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with §277.1(b) of the Commissioner’s regulations necessarily results in a jurisdictional failure and requires dismi ssal ( Appeal of Reis and Argus , 51 Ed Dept Rep, Decision No. 16,335; Appeal of Kelly , 45 id . 38, Decision No. 15,253). Accordingly, the appeal must be dismissed.

Moreover, the appeal and application are also moot. 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, D ecision No. 15,940; Appeal of M.M. , 48 id . 527, Decision No. 15,937; Appeal of Embro , 48 id . 204, Decision No. 15,836) . The record indicates that Dils did not seek reelection to the board in 2013 and is no longer a sitting board member. Petitioner’s requ est for removal is therefore moot as would be any allegations that the board of education improperly excused Dils’ absences ( Applications of Lilly , 47 Ed Dept Rep 307, Decision No. 15,705).

Even if this appeal and application were not dismissed as set fo rth above, they would be dismissed 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, Decisio n No. 15,888; Application of Schenk , 47 id . 375, Decision No. 15,729).

In an application for removal brought pursuant to Education Law §306 and in an appeal under Education Law §310 , the p etitioner 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 15,936; Application of Dunham, et al. , 42 id . 298, Decision No. 14,860; Application of Downing , 40 id . 396, Decision No. 14,509). Petitioner has failed to sustain his burden.

Petitioner claims that Dils neglected his duties as a board member by failing to attend three successive board meetings and, therefore, has vacated his office by refusing to serve pursuant Education Law §2109. He also appears to contend that the board improperly excused Dils’ absences.

However, there is no showing that Dils wilfully or intentionally refused to serve as a member of the board. Rather, in their verified answe r, Dils and the board deny that Dils refused to serve and assert that Dils offered - and the board accepted - a “good and valid excuse” for each absence. In support, Dils has submitted an affidavit stating that because of his work schedule he is sometimes unable to attend board meetings, and that for each of the subject absences (March 6, March 13, and March 20, 2012) he provided a satisfactory excuse to the board. In addition, former board president, Dr. Joan G. Calkins, has submitted an affidavit statin g that Dils provided the board with a satisfactory excuse for each of the subject absences.

In circumstances such as this, where the board has accepted a board member’s excuse for his absences and has not declared a vacancy for refusal to serve, I genera lly will not substitute my judgment for that of the board ( Application of Shader , 31 Ed Dept Rep 252, Decision No. 12,634; Matter of Ratner , 11 id . 305, Decision No. 8,474; Matter of Cooke , 11 id . 23, Decision No. 8,317). Although petitioner contends that the reason for Dils’ absences was not a “good and valid excuse,” I note that the absences must be excused to the board’s – not petitioner’s - satisfaction. Here, the record indicates that the board was satisfied with Dils’ excuses and his removal from of fice for allegedly refusing to serve is unwarranted ( Application of Shader , 31 Ed Dept Rep 252, Decision No. 12,634; Matter of Ratner , 11 id . 305, Decision No. 8,474; Matter of Pupparo , 11 id . 74, Decision No. 8,348; cf ., Appeal of Dupras , 47 id . 471, Deci sion No. 15,757).

Finally, Dils has requested that I issue him a certificate of good faith pursuant to Education Law §3811. Such certification is solely for the purpose of authorizing the board to indemnify Dils for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a board member. It is appropriate to issue such certification unless it is established on the record that the requesting bo ard member 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; Application of Lilly , 43 id . 459, Decision No. 15 ,050). In view of the fact that the appeal and application are dismissed on procedural grounds and there has been no finding that Dils acted in bad faith, I hereby certify solely for the purpose of Education Law §3811 that Dils appears to have acted in good faith.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED .

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