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Decision No. 16,823

Application of RAMONA C. JONES, WILMA GLOVER-KOOMSON, YOLANDA WHITE, REBECCA MONTESA, KIM FOSKEW, LISA ROSS, NASIK ELAHI, BETTY CARMAND, DONIQUE JOHNSON, LANA RHEUBOTTOM, LILI GRADY, STEVEN WHITE and EMILIA WHITE for the removal of Daniel Schwartz, as president, and Yehuda Weissmandl, Moses Friedman, Moshe Hopstein and Eliyahu Solomon as members of the Board of Education of the East Ramapo Central School District.

Decision No. 16,823

(August 31, 2015)

Advocates for Justice, attorneys for petitioners, Arthur Z. Schwartz, Esq., of counsel

Snitow Kanfer Holtzer & Millus, LLP, attorneys for respondent Daniel Schwartz, Franklyn H. Snitow, Esq., of counsel

Bingham McCutchen LLP, attorneys for respondents Yehuda Weissmandl, Moses Friedman, Moshe Hopstein and Eliyahu Solomon, David J. Butler, Esq., of counsel

Minerva & D’Agostino, P.C., attorneys for the Board of Education of the East Ramapo Central School District, Christopher G. Kirby, Esq., of counsel

ELIA, Commissioner.--Petitioners seek both the removal of Daniel Schwartz, Yehuda Weissmandl, Moses Friedman, Moshe Hopstein and Eliyahu Solomon (collectively, “respondent board members”)[1] as members of the Board of Education (the “board”, and collectively with respondent board members, “respondents”)[2] of the East Ramapo Central School District (the “district”), and the appointment of an “oversight monitor” to review all expenditures and decisions regarding special education matters.  The application must be denied.

Petitioners’ application is yet another in a series of legal proceedings in which the district has become embroiled.  Insofar as relevant, various petitioners have challenged the closure, sale and lease of the Hillcrest Elementary School (see Appeal of Forest, 53 Ed Dept Rep, Decision No. 16,501, judgment granted dismissing petition, January 29, 2014, Sup. Ct., Albany Co.; Appeal of Luciano, 51 id., Decision No. 16,308; Appeal of White, 50 id., Decision No. 16,239; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153) (collectively, the “Hillcrest appeals”); the closure, lease and sale of the Colton Elementary School (see Appeal of Anderson, 52 Ed Dept Rep, Decision No. 16,438; Appeal of Hatton, 49 id. 47, Decision No. 15,954) (collectively, the “Colton appeals”); and the decision to retain the law firm of Minerva & D’Agostino, P.C., as the district’s legal counsel (see Appeal of White, 50 Ed Dept Rep, Decision No. 16,110) (the “D’Agostino appeal”).  Each of these appeals generally involved allegations that the board and certain of its members engaged in wrongdoing, breached fiduciary duties, and afforded preferential treatment to certain groups within the district.

In the instant matter, petitioners seek to remove respondent board members on a number of grounds.  Many of the claims, however, arise from the same operative facts giving rise to the Hillcrest appeals, the Colton appeals and the D’Agostino appeal, and many of the allegations are similar to those presented in those matters. 

In addition, petitioners in this proceeding also seek removal of respondent board members, contending that: (i) the district willfully failed to comply with certain rules regarding the placement of special education students; (ii) based on the findings of an audit conducted by the Office of the State Comptroller, respondents breached their fiduciary duty to provide the “best possible governance”; (iii) respondents unlawfully purchased religious textbooks for distribution to nonpublic schools; and (iv) respondents compromised the safety and security of public school students by failing to post “No Trespassing” signs.  Petitioners also request the appointment of a monitor with the final right of approval on all district financial and special education matters. 

Respondents argue that the application must be dismissed on several procedural grounds, including untimeliness, mootness and the failure to state a claim.  Respondents also generally deny all the allegations and assert that they acted in good faith and their actions were proper in all respects.  Respondents request a certificate of good faith pursuant to Education Law §3811.

I must first address a procedural issue regarding the parties’ respective legal memoranda, particularly petitioners’ putative “reply” memorandum.  By letter dated September 25, 2012, petitioners’ counsel claimed that because of the “delayed submission of the memoranda of law by respondents ...” petitioners had “cobbled together a quick response ...” in the form of a reply memorandum.  Respondents object to this submission, arguing that it is nothing more than an attempt to submit a late memorandum and, even it were a true “reply” memorandum, petitioners’ failed to obtain prior approval to file it as required by 8 NYCRR §276.4.

Parties may submit memoranda of law in an appeal before the Commissioner (8 NYCRR §276.4).  Petitioners were required to serve their memorandum within 20 days after service of a respondent’s answer or within 10 days after the service of a reply, whichever was later; while respondents were required to serve their respective memorandum within 30 days after the service of their answer or within 20 days after the service of a reply, whichever was later (8 NYCRR §276.4). 

Although petitioners’ September 25, 2012 letter asserts that respondents “delayed submission” of their memoranda, I find that each memorandum was timely.  The affidavits of service reflect that the answer on behalf of respondents Yehuda Weissmandl, Moses Friedman, Moshe Hopstein and Eliyahu Solomon was served by mail on August 24, 2012; the answer on behalf of respondent Daniel Schwartz was served by mail on August 24, 2012; and the answer on behalf of the board was served by mail on August 27, 2012.  Petitioners did not submit a reply to any of the answers.  Therefore, respondents had until September 24, 2012, September 24, 2012 and September 26, 2012,respectively, to serve their memoranda.[3]  The affidavits of service submitted by respondents reflect that these deadlines were satisfied.  Accordingly, each memorandum was timely.

Petitioners’ submission of a “reply” memorandum, however, is improper.  As noted above, the three seperate answers herein were served upon petitioners by mail on August 24, 2012, August 24, 2012 and August 27, 2012.  Because petitioners did not reply to the answers, they had 20 days[4] from the date of each such mailing to serve a memorandum upon each of the respondents (8 NYCRR §276.4).  Thus, petitioners should have served their memoranda upon each of the respondents on September 17, 2012, September 17, 2012 and September 20, 2012, respectively. 

Rather, on September 25, 2012, petitioners served a putative “reply” memorandum upon respondents.  In their September 25, 2012 letter explaining this “reply” memorandum, petitioners state that their application “wove both law and facts together, obviating the necessity of a Memorandum of Law,” but they “cobbled together” a response to respondents’ filings. 

Regardless of whether I view this submission as a memorandum or a reply memorandum, I will not consider the document.  Based upon the calculation of the dates as set forth above, if considered as a memorandum, the submission was clearly untimely (Application of Lombardo, 37 Ed Dept Rep 721, Decision No. 13,967). While the Commissioner may permit the late filing of a memorandum where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]), I find that no such showing was made here (Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658).

In addition, a reply memorandum may be accepted only with the prior approval of the Commissioner (8 NYCRR §276.4).  Here, although petitioners claim that they “cobbled together a quick response” to respondents’ memoranda, the document appears to also add new assertions and proof.[5]  A reply memorandum, however, may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053).  Moreover, petitioners had an opportunity to submit a timely memorandum but they elected not to do so.  Accordingly, I also decline to accept the document as a reply memorandum (Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053; Appeal of Gorsky, 47 id. 162, Decision No. 15,658).

In a related issue, respondents requested permission to submit sur-reply memoranda.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  Respondents’ proposed submissions were targeted to address matters relating to petitioners’ reply memorandum.  Because I have not accepted petitioners’ reply memorandum, I likewise decline to accept respondents’ sur-reply memoranda (Application of Lombardo, 37 Ed Dept Rep 721, Decision No. 13,967).

Next, respondents contend that because petitioners failed to file a reply refuting the affirmative defenses contained in the answers, all such affirmative defenses are deemed admitted, warranting denial of the application.  Respondents are incorrect.  Although section 275.14 of the Commissioner’s regulations states that a petitioner shall reply to each affirmative defense, the result of a petitioner’s failure to do so is that the facts alleged are deemed to be true (Appeal of Carmand and White, 54 Ed Dept Rep, Decision No. 16,689).  I am not bound, however, to accept respondents’ legal conclusions regarding the affirmative defenses, and a legal analysis of the admitted facts with respect to the affirmative defenses must be performed (Appeal of Carmand and White, 54 Ed Dept Rep, Decision No. 16,689).

Nevertheless, on the record before me, I am constrained to agree with respondents that all of petitioners’ claims for removal are 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). 

Here, all of petitioners’ claims are based on actions taken by the board well more than 30 days before the commencement of this matter in July 2012, or are based on information set forth in documents and reports that were created and available for review more than 30 days before the commencement of this matter.  For example, all of the facts giving rise to alleged misconduct regarding: (i) the closure, sale and lease of the Hillcrest Elementary School occurred in 2010 and 2011; (ii) the lease and sale of the Colton Elementary School occurred in 2011; and (iii) the board’s decisions to retain the law firm of Minerva & D’Agostino, P.C., occurred in 2009 and 2010.  Accordingly, I find that each of these claims is untimely. 

Also untimely is petitioners’ claim that respondent board members should be removed for failing to comply with the Regulations of the Commissioner regarding the placement of special education students in private schools which resulted in the district losing state funding. On August 27, 2010, a report was issued by the State Education Department’s Office of Special Education, Hudson Valley Regional Office of Special Education Quality Assurance (“SEQA”) following its monitoring review of the district’s policies and procedures (the “SEQA Report”).  Thereafter, a follow-up monitoring review occurred on February 28 and February 29, 2012, resulting in a notice of continuing noncompliance (the “SEQA Notice”). All of petitioners’ claims for removal based on this issue are culled from the SEQA Report and SEQA Notice, which were each issued well more than 30 days before the commencement of this matter in July 2012.

Similarly, petitioners’ contention that the removal of respondent board members is warranted because they breached their fiduciary obligation to provide the “best possible governance,” is also untimely.  Petitioners assert that an audit report by the Office of the New York State Comptroller (the “Comptroller’s Report”) found that the district failed to properly track accounts receivable and the distribution of textbooks, and that there was a lack of procurement control.  All of petitioners’ claims regarding this issue, however, are based on facts and findings set forth in the Comptroller’s Report, which was issued in August 2011 - almost a full year before the commencement of this matter in July 2012.

Petitioners also seek the removal of respondent board members for allegedly purchasing religious textbooks for distribution to private schools within the district.  They base this claim on purchase orders from June, July, August, and November 2011, which each list certain titles that petitioners assert constitute non-secular textbooks.  This claim is untimely because each of the alleged improper purchases occurred well more than 30 days before the commencement of this matter in July 2012.

Finally, petitioners’ assert that respondent board members should be removed because they compromised the safety and security of public school students by failing to post “No Trespassing” signs.  By letter addressed to board president Morris Kohn[6] dated April 7, 2012, petitioner Rebecca Montesa asserted that “unauthorized strangers” had been on school grounds and asked that the board, inter alia, post “No Trespassing” signs at district schools (the “Montesa Letter”).  Petitioners appear to interpret the Montesa Letter as a formal request for action and complain that respondents’ failure to do so warrants removal.  This claim, however, is untimely as the request was made on April 7, 2012 - four months prior to the commencement of this matter.

Despite the above analysis, petitioners argue that the untimeliness of their claims should be excused because of the complexity of the case, as permitted by Application of Griffin (31 Ed Dept Rep 221, Decision No. 12,625).  However, petitioners’ reliance upon Application of Griffin is misplaced.  In Application of Griffin, the removal of certain board of education members was sought for both approving a spending plan in excess of budgeted fiscal appropriations and incurring expenditures in excess of said appropriations.  Notably, the Commissioner specifically held that claims arising from the budget vote were untimely because the challenged action of the board occurred 21 months prior to the commencement of the proceeding.  Regarding the second alleged wrong, petitioner contended that it was impossible for him to determine the amount the board actually spent until he received clarification from the board’s auditors and that he then promptly commenced the matter within 30 days of receiving the auditor’s clarification letter.  The Commissioner held that this claim was timely, finding that because of the complexity of the financial issue, it was reasonable for petitioner to wait until he was able to verify the level of overspending before commencing the appeal.

Therefore, contrary to petitioners’ assertion, Application of Griffin actually stands for the proposition that, where a petitioner can establish that the late commencement of a matter is reasonable under the circumstances, then the Commissioner may excuse the late filing for “good cause” (8 NYCRR §275.16).  On the record before me, however, petitioners have made no such showing.

Petitioners appear to allege “good cause” for the late filing by claiming they had to “go through” Commissioner’s decisions and records of the New York State Comptroller in order to proceed with the matter.  It is unclear from the application and record, however, what exactly they needed to “go through” and how this caused a delay.  To the extent petitioners may be claiming that they needed time to gather documents and evidence, perform research, and prepare their application, it is well settled that these reasons do not constitute “good cause” upon which to excuse an untimely filing (see e.g., Appeal of Bentley, et al., 54 Ed Dept Rep, Decision No. 16,750; Appeal of Levendusky, 52 id., Decision No. 16,455; Appeal of Thompson, 47 id. 309,  Decision No. 15,706; Appeal of Bayer, 35 id. 333, Decision No. 13,561).

Petitioners also suggest that “good cause” exists for the late commencement because “supporting information was not readily available” to them.  Petitioners contend that they have made numerous requests under the Freedom of Information Law (“FOIL”) and that the board has not responded to any of them.  Petitioners, however, have failed to identify or offer any evidence regarding what records were requested and when the requests were made, or to explain why these records were required to commence this matter.  In fact, petitioners appear to have commenced this matter without these records, thus belying this claim.  Moreover, to the extent their argument can be read as alleging FOIL violations, section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations 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 Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address any FOIL allegations raised in this matter.

Petitioners also state in their application that many of the alleged improprieties are “ongoing.”  However, they offer no evidence or further information other than this vague and conclusory statement.  To the extent petitioners attempt to invoke the continuing wrong doctrine,  I note that this applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).

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).  

On the record before me, I am unable to find that petitioners have met their burden of establishing respondents’ alleged actions constitute a continuing wrong. Petitioners challenge specific actions taken by the board that are discrete events and they have not established that the results of these actions are intrinsically unlawful.  Accordingly, the continuing wrong doctrine does not apply (Appeal of Paladino, 53 Ed Dept Rep, Decision No. 16,594).

In addition, although 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), petitioners have not established that that they were unable, in good faith, to discover the facts underlying the claims until the 30-day period prior to the commencement of this matter (Appeal of Paladino, 53 Ed Dept Rep, Decision No. 16,594).

In light of the foregoing, on the record before me, I find that each of petitioners’ claims for removal is untimely and must be dismissed.

In addition, many of petitioners’ claims must also be dismissed as 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, 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). 

I take judicial notice of the fact that respondents Moses Friedman, Eliyahu Solomon and Daniel Schwartz no longer hold the office for which removal is sought.  Accordingly, to the extent petitioners’ application seeks to remove these individuals from the board, such claims must be dismissed as moot (Appeal of Affronti, 54 Ed Dept Rep, Decision No. 16,756; Appeal of Anderson, 52 id., Decision No. 16,438).

Moreover, issues regarding any alleged wrongdoing in connection with the Hillcrest Elementary School, the Colton Elementary School, and the decision to retain the law firm of Minerva & D’Agostino as board counsel, were settled by my decisions in the Hillcrest appeals, Colton appeals and D’Agostino appeal.  Therefore, all of petitioners claims regarding these issues are also moot (see Appeals of Bushwick Ascend Charter School, et al., 54 Ed Dept Rep, Decision 16,761).[7]

Even if the claims against remaining respondent board members Yehuda Weissmandl and Moshe Hopstein were not dismissed on procedural grounds, they would be dismissed on the merits.  A member of a board of education may be removed from office pursuant to Education Law §306 when it is proved to the satisfaction of the Commissioner that the board member 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 the Commissioner of Education (Application of Powell, 50 Ed Dept Rep, Decision No. 16,216; Application of Kolbmann, 48 id. 370, Decision No. 15,888).  To be considered wilful, a respondent’s actions must have been intentional and with a wrongful purpose (Application of Johnson, 46 Ed Dept Rep 67, Decision No. 15,443; Appeal of Giardina, 46 id. 524, Decision No. 15,583).  Applications for removal must set forth the facts establishing the violations “with such certainty as to time, place and all other pertinent details, as to furnish the officer with precise information as to what he is expected to meet ...” (8 NYCRR §277.1[a]).

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).  Significantly, removal from office is a drastic remedy that will be taken only in extreme circumstances (Application of Powell, 50 Ed Dept Rep, Decision No. 16,216; Application of Tang, 48 id. 507, Decision No. 15,932).  Here, petitioners have failed to satisfy their burden.

Petitioners’ claim that removal of board members is warranted for failing to comply with certain rules regarding the placement of special education students is based on the SEQA Report and SEQA Notice.  Similarly, the claims that there was a failure to provide “the best possible governance” are based upon findings in the Comptroller’s Report.  While the documents petitioners cite contain findings against the district with respect to special education placements and fiscal audits, petitioners have failed to establish that the individual respondents intentionally acted with a wrongful purpose to disregard a lawful duty or violate a legal requirement, and thus have failed to establish any ground for their removal under Education Law §306.  For example, although the SEQA Report and SEQA Notice contain findings of noncompliance with special education regulatory provisions related to documentation and placements, they do not describe any conduct or decisions on the part of any individual board members. 

With respect to the Comptroller’s Report, I share petitioners’ concerns that the findings regarding mismanagement and lack of fiscal controls are both serious and troubling.  However, the Comptroller’s Report indicates that the district engaged in corrective actions and contains no evidence that individual board members acted intentionally with a wrongful purpose.  As a result, on this record, petitioners have failed to allege that any respondent board member engaged in wilful wrongful conduct, let alone provide any other pertinent details or specificity regarding the alleged wrongful acts of each respondent board member.  Rather, the application contains generalized blanket claims leveled at the district and the board as a whole and, as a result, the application must be denied (8 NYCRR §277.1[a]; Appeal of Anderson, 52 Ed Dept Rep, Decision No. 16,438; Appeals of Braca, 33 id. 536, Decision No. 13,140).

Petitioners have also failed to establish that any respondent board member wilfully violated Education Law §701 by distributing religious textbooks to private school students.  Insofar as relevant, Education Law §701(3) permits the purchase and loan of textbooks to students enrolled in nonpublic schools.  These textbooks, however, must be “nonsectarian” and may not carry the imprimatur of a religious authority (Formal Opinion of Counsel No. 181, 5 Ed Dept Rep 258, Decision No. 181).  Out of the approximately 84,000 textbooks and workbooks that the district orders and loans annually, petitioners cite to one purchase order containing approximately 10 titles they allege are “non-secular” and two other purchase orders listing a few textbooks in Yiddish.  Based upon the record before me, I cannot conclusively determine that these books contained prohibited religious content. 

More importantly, however, the record indicates that the district has implemented a Textbook Loan Program Policy and Guidelines (the “Textbook Policy”), that clearly advises those in the district requesting textbooks that they cannot order/purchase “materials advocating or supporting a religious belief....”  In addition, the Textbook Policy contains an entire page devoted to the “Definition of Textbook” and again advises that “only textbooks of a non-sectarian nature can be provided” and sets forth examples of materials constituting religious or sectarian texts.

Regarding the actual requests for textbooks, the record demonstrates that the board delegated administration of the textbook program to the district’s book depository staff and to its claims auditor.  Pursuant to this procedure, the book depository staff reviews all orders for religious content.  If a title appears to contain religious content, it is sent to the district’s assistant superintendent for further review.  Thereafter, the purchase order is transmitted to the vendor and all such orders expressly advise the vendor in bold print “Do not send any books that violate NYS Textbook/Library Law.  Only materials that are secular in nature can be accepted.”  Upon receipt of the textbook from the vendor, the book depository staff review the material for prohibited content.  A final check is then conducted by the district’s claims auditor who has responsibility for approving the purchase orders.

Therefore, based upon the record before me, petitioners have not established that any respondent board member selected, or otherwise reviewed or approved, the purchase of the allegedly prohibited textbooks.  Accordingly, this claim for removal must be denied.

Petitioners’ claim that respondents compromised student safety by failing to post “No Trespassing” signs must also be denied.  Petitioners have not established any wilful violation or neglect of duty on the part of any respondent board member in this regard (Appeal of Anderson, 52 Ed Dept Rep, Decision No. 16,438; Application of O’Mara, 37 id. 122, Decision No. 13,819).  It appears as though petitioners’ primary objection is that, rather than post “No Trespassing” signs as demanded in the Montesa Letter, the board asked the community for documentation regarding the alleged trespassers.

To the extent the petition alleges violations of board policies regarding fiduciary obligations and student safety, I note 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 (Application of Simmons, 53 Ed Dept Rep, Decision No. 16,596).

Finally, I lack the authority to grant petitioners’ request for the appointment of an interim and permanent “oversight monitor” that “must, minimally, have power to review all expenditures and special education decisions.”  The Commissioner of Education has the responsibility of supervising all schools and institutions which are subject to the provisions of the Education Law, or any statute relating to education, and is required to, inter alia, “advise and guide the school officers of all districts and cities of the state in relation to their duties and the general management of the schools under their control” (Education Law §305[2]).  Under Education Law §308, the Commissioner also has the power and duty to institute proceedings or processes necessary to properly enforce and give effect to any provision in the Education Law or any statute relating to the school system of the State or to any school district and to enforce any rule or direction of the Board of Regents (“Regents”).  Pursuant to Education Law §215, the Regents, the Commissioner, or their representatives, may “visit, examine into and inspect” any institution in the University of the State of New York (“USNY”) and any school or institution under the educational supervision of the State, and may require, as often as desired, duly verified reports providing such information and in such form as the Regents or the Commissioner shall prescribe.

However, the Appellate Division has ruled that the Commissioner lacks the authority to appoint an overseer invested with “veto power” – the power to substitute his or her opinion and determination for that of the board – as petitioners request in this matter (see Verbanic v. Nyquist, 41 AD2d 466).  While I lack the authority to grant the relief sought by petitioners, I note that, on August 13, 2015, I exercised my existing authority under the statutory provisions discussed above to appoint Dennis M. Walcott as a monitor to serve the district in an advisory capacity in order to ensure that it is able to provide an appropriate educational program and properly manage and account for State and federal funds received.  Mr. Walcott, former Chancellor of the New York City public school system, has extensive experience in school management and governance and is supported by a team of experts in teaching and learning, school turnaround and state aid and fiscal policy.

Although I am constrained to dismiss the application for the foregoing reasons, one administrative matter remains.  Respondent board members have requested a certificate of good faith pursuant to Education Law §3811(1).[8]  Such certification is solely for the purpose of authorizing the board to indemnify the respondent board members for their legal fees and expenses incurred in this proceeding (Appeal of Carmand and White, 54 Ed Dept Rep, Decision No. 16,689; Application of Houdek, 47 id. 415, Decision 15,740).  It is appropriate to issue such certification unless it has been established on the record that the requesting party acted in bad faith (Applications of Rivera, et al., 54 Ed Dept Rep, Decision No. 16,768; Application of Houdek, 47 id. 415, Decision 15,740; Application of Lilly, 43 id. 459, Decision No. 15,050). 

In light of the procedural dismissals and for the reasons discussed above, I am unable to find on the record before me that respondent board members acted in bad faith, though the totality of the circumstances presented in this case do give the appearance of impropriety (Appeal of Anderson, 52 Ed Dept Rep, Decision No. 16,438).  Accordingly, I will issue a certification for the discrete purpose of Education Law §3811(1) with the admonition that such certification is in no way to be construed as approval of their actions.  In addition, given the district’s current fiscal crisis, I further remind the board that reimbursement for legal costs must be reasonable, and that this decision shall in no way be construed as a finding that any legal expenses are, in fact, reasonable (Appeal of Anderson, 52 Ed Dept Rep, Decision No. 16,438).  As the Commissioner ruled in Appeal of Carmand and White, 54 Ed Dept Rep, Decision No. 16,689, I have no jurisdiction to determine the reasonableness of attorneys’ fees under Education Law §3811 and any challenge to the reasonableness of such fees must be brought in a taxpayer’s action in court.

Finally, based on the record in this case and the history of turmoil in the district, I share petitioners’ concerns regarding the actions and decisions of the board, which is ultimately responsible for the operation of the school district.  For instance, while on this record I cannot conclusively determine that the textbooks at issue contained prohibited religious content, the titles of certain textbooks - such as “Let My Nation Go,” “I Keep Kosher” and “Let’s Go [To] Shul” – do raise serious questions as to their content and whether the district is adhering to its Textbook Policy.  Moreover, while petitioners cite no authority requiring that the district post “No Trespassing” signs, I am sympathetic to their concerns over student safety and security.  Accordingly, I direct the Monitor and his team, as part of their monitoring duties in the district, to review the district’s policies and practices regarding textbook purchases and loans, safety and security and to provide the district with guidance, recommendations, and proposed actions related thereto.

THE APPLICATION IS DENIED.

END OF FILE

 

[1] Respondents Yehuda Weissmandl, Moses Friedman, Moshe Hopstein and Eliyahu Solomon submitted a joint answer, while respondent Daniel Schwartz submitted a separate answer because most of the allegations set forth in the application occurred before he was sworn in as a member of the board on July 6, 2011.

 

[2] The application was also served upon four additional board members - Jacob Lefkowitz, Yonah Rothman, Suzanne Young-Mercer and Stephen Price – who were named as necessary parties in the caption of the petition. The board submitted an answer because it too was served with the application, although not named in its caption.

 

[3] Where, as here, the last day for service of certain respondents’ memoranda was Sunday, September 23, 2012, those respondents were required to serve their memorandum on the following Monday, September 24, 2012(8 NYCRR §275.8[b]).

 

[4] The date the verified answers were mailed and the subsequent four days are excluded from the computation of the 20-day period in which petitioners should have served their memorandum (8 NYCRR §276.4).

 

[5] Petitioners’ submission included exhibits containing certain confidential student information.  By letter dated October 11, 2012 petitioners requested that I “delete” the reply memorandum and accept a substitute corrected memorandum which omitted the materials containing the confidential information.  For the purposes of determining whether to accept any memorandum from petitioners, I am treating the October 11, 2012 corrected reply memorandum as if it were served on September 25, 2012, when the reply memorandum was served.

 

[6] Morris Kohn is not a named respondent or a party to this application.

 

[7] I take judicial notice of the fact that the law firm of Minerva & D’Agostino is no longer retained by the board as board counsel.

 

[8] The issuance of such certification was also discussed in Appeal of Carmand and White (54 Ed Dept Rep, Decision No. 16,689) but the determination was deferred to a decision in this matter.