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Decision No. 17,150

Application of the BUFFALO PARENT TEACHER ORGANIZATION, NAACP BUFFALO BRANCH, LAWRENCE SCOTT, THE REVEREND MARK BLUE, EVE SHIPPENS, KATHERINE S. HAQ, RAHWA GHIRMATZION, GRETCHEN CERCONE, CHANDA O’DONNELL DE RAMIREZ, and RACHEL DOMINGUEZ 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. 17,150

(August 17, 2017)

Perkins Coie LLP, attorneys for petitioners, Richard Ross and Jalina J. Hudson, Esqs., of counsel

NAACP Legal Defense & Educational Fund, Inc., attorneys for petitioners, Sherrilyn Ifill, Janai Nelson, Christina Swarns, Raymond Audain and Monique Lin-Luse, Esqs., of counsel

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

ELIA, Commissioner.--Petitioners, the Buffalo Parent Teacher Organization (“BPTO”), NAACP Buffalo Branch, Lawrence Scott, the Reverend Mark Blue, Eve Shippens, Katherine S. Haq, Rahwa Ghirmatzion, Gretchen Cercone, Chanda O’Donnell de Ramirez, and Rachel Dominguez, 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.

The record indicates that petitioner BPTO is a non-profit organization based in Buffalo, with over 2,000 members, including parents, guardians, or “other adult standing as a parent for a student” in the district.  Petitioner Scott is a co-chair of the BPTO, taxpayer and resident in the Buffalo City School District.  Petitioner NAACP Buffalo Branch is a non-profit organization based in Buffalo that primarily serves the African-American community in the Buffalo area.  Petitioner Blue is the president of the NAACP Buffalo Branch.  Petitioner Shippens is a co-chair of the BPTO, a district teacher and parent.  Petitioner Haq is a BPTO secretary and parent.  Petitioner Ghirmatzion is the deputy director of PUSH Buffalo, an organization that serves approximately 2,000 district youths per year.  Petitioner Cercone is a parent, resident and taxpayer in the district.  Petitioner O’Donnell de Ramirez is a BPTO member, parent and former educator in the district.  Petitioner Dominguez is a BPTO member, parent, resident and taxpayer in the 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 magazine published comments by respondent which responded to four survey 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, were inflammatory and have had a detrimental impact on the district’s students, teachers, families and communities. 

On December 22, 2016, respondent sent an e-mail to board president Barbara Seals-Nevergold.  According to petitioners, the e-mail was copied to members of the local media and disclosed confidential information about pending litigation discussed during executive session on December 21, 2016.

On 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 the board’s October 12, 2016 executive session.

On January 14, 2017, respondent published an article in Artvoice magazine entitled: “The Morally Bankrupt Board of Education of the Buffalo Public Schools.”  In the article, respondent addressed “accusations against [him]” concerning his disclosure of allegedly confidential information in the January 5, 2017 Artvoice article. 

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.  Petitioner made one application to submit additional evidence pursuant to 8 NYCRR §276.5 which was granted in part and denied in part, and my rulings inconnection therewith have become part of the record.[1]

Petitioners assert that respondent, by his “inflammatory remarks,” violated, inter alia, his duty to promote a safe and healthy environment for Buffalo’s students, and neglected his duties and responsibilities as a member of the board.  They assert that the statements have detrimentally impacted the academic environment in the district.  Petitioners also contend that respondent violated General Municipal Law §805-a as well as the board’s code of conduct and his oath of office by disclosing information which he obtained in the course of his official duties.  Petitioners assert that the information disclosed was not public and was not authorized for release, and that such disclosures have caused a great deal of disruption in the operation of the school district and have had a chilling effect on the board’s ability to engage in free and open discussions during executive sessions.  Petitioners seek an order removing respondent from office pursuant to pursuant to Education Law §§306 and 2559.

Respondent generally denies the allegations in the petition and admits that he is a duly elected member of the board and that he represents the Park District.  He also admits to sending e-mails, including the December 22, 2016 e-mail, and that he has “made certain statements.”  He admits to writing the Artvoice articles.  However, 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.

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 permanently removed from his position on the board.[2]  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 General Municipal Law §805-a by disclosing confidential information which he obtained in the course of his official duties.  Petitioners’ application for respondent’s removal, therefore, is moot (Application of Laub, et al., 49 Ed Dept Rep 317; 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] By letter dated February 3, 2017, petitioners attempted to submit an amended petition for consideration.  By letter dated February 13, 2017, my Office of Counsel advised petitioners that the regulations of the Commissioner of Education governing appeals brought pursuant to Education Law §310 do not permit amendment of a petition in a pending appeal but that petitioners could apply to submit additional information pursuant to 8 NYCRR §276.5.  Petitioners’ February 20, 2017 application pursuant to 8 NYCRR §276.5 was to submit certain affidavits and exhibits which they originally attempted to submit with their amended petition. 

 

[2] To the extent petitioners request permanent removal, 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.”