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Decision No. 17,148

Application of JOSEPH R. MONTANTE, SOPHIA HOWARD-JOHNSON, MARIA A. BAKER, RACHEL LYONS, and RUYVETTE TOWNSEND for the removal of Carl Paladino as a member of the Board of Education of the City School District of the City of Buffalo.

Decision No. 17,148

(August 17, 2017)

Robert T. Reilly, Esq., attorney for petitioners,     Timothy Connick, Esq., of counsel

Lippes Mathias Wexler Friedman LLP, attorneys for respondent, Dennis C. Vacco, Jennifer Persico and Stacey Moar, Esqs., of counsel

Bond Schoeneck & King, PLLC, attorneys for necessary party Board of Education of the City School District of the City of Buffalo, Bethany A. Centrone, Esq., of counsel

ELIA, Commissioner.--Petitioners, Joseph R. Montante, Sophia Howard-Johnson, Maria A. Baker, Rachel Lyons, and Ruyvette Townsend, seek the removal of Carl 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.

Petitioners are teachers, residents, parents, taxpayers, and “members of the Buffalo educational community” in respondent’s district.  Respondent was elected to a three-year term as a member of the board on May 21, 2013 and was subsequently re-elected on May 17, 2016. 

On or about December 23, 2016, Artvoice[1] magazine published comments by respondent which responded to questions the publisher posed to individuals in the Buffalo community.  According to petitioners, respondent’s comments, which referenced the former President and First Lady of the United States, “have roiled the Buffalo community” and received extensive media coverage.

On or about January 5, 2017, respondent published an article in Artvoice magazine entitled, “How Union President Rumore Co-opted the Buffalo School Board and Rigged the Teacher’s Contract.”  Petitioners contend that this article disclosed confidential information which respondent received during executive session.

This application ensued.  Respondent made three applications to submit additional evidence pursuant to 8 NYCRR §276.5 which were granted in part and denied in part, and my rulings in connection therewith have become part of the record.

Petitioners assert that respondent, by his “inflammatory actions and statements,” violated his oath of office and Education Law §10, which requires schools to provide a supportive environment free of discrimination and harassment, and neglected his duties and responsibilities as a member of the board, among other things.   Petitioners also contend that respondent violated General Municipal Law §805-a, as well as the board’s code of conduct, by intentionally disclosing information which he obtained in executive session in the course of his official duties.   Petitioners seek an order removing respondent from office pursuant to Education Law §§306 and 2559.

 Respondent generally denies the allegations in the petition, refers to the December 23, 2016 and January 5, 2017 articles for their contents, and admits that he took an oath of office to uphold the law and faithfully discharge his duties.  Respondent contends that the information he disclosed was not subject to confidentiality and/or was a matter of public interest or concern or already made public by third parties.  Respondent asserts several affirmative defenses, including that his actions were “taken with the intent to prevent crime or fraud”; that the instant proceedings are pretextual, retaliatory and “infringe upon and chill constitutionally protected speech”; that his actions were taken in good faith; and that he does not have a pecuniary or material interest furthered by any of the alleged disclosures, which is required for a violation of General Municipal Law §805-a.  Respondent requests a certificate of good faith pursuant to Education Law §3811.[2]

The application must be denied 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).  Petitioners request that respondent be removed from his position on the board and declare him “ineligible henceforth to hold such office.”[3]  With respect to the latter part of petitioners’ request, 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).  With respect to petitioners’ request that respondent be removed from office, I take administrative notice of my August 17, 2017 decision in Application of the Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147, in which respondent was removed from office for wilful violation of law.  Petitioners’ application for respondent’s removal, therefore, is moot (Application of Laub, et al., 49 Ed Dept Rep 317, Decision No. 16,040; Applications of Lilly, 47 id. 307, Decision No. 15,705; Application of Carbone, 46 id. 215, Decision No. 15,485).

One final matter remains.  By letter dated March 7, 2017, respondent requests that I issue a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify him 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 board member or trustee acted in bad faith (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Application of Mazile, 45 id. 378, Decision No. 15,356).  

As discussed above, I take administrative notice of my August 17, 2017 decision in Application of the Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147, in which respondent was removed from the board for wilful violation of General Municipal Law §805-a for disclosing confidential information which he obtained in the course of his official duties.  The confidential information that was the subject of that application included the same information regarding collective negotiations that is the subject of petitioners’ disclosure claim herein.  In view of that decision, which included a finding that respondent acted in bad faith in this regard, respondent is not entitled to a certificate of good faith herein. 

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

THE APPLICATION IS DENIED.

END OF FILE

 

[1] According to the record, Artvoice is a weekly publication in the Buffalo area.

 

[2] By letter dated February 20, 2017, respondent also objected to the submission of the board’s answer; however, I need not address that objection in light of the disposition herein.

 

[3] To the extent petitioners request a determination that respondent be declared ineligible to hold such office “henceforth,” I note that Education Law §2103(2) provides that “[a] person removed from a school district office shall be ineligible to appointment or election to any district office for a period of one year from the date of such removal.”