Application of DEBORAH LYONS-BIRSNER and CARL BIRSNER, individually and on behalf of their daughter, for the removal of Robert Vitiello and Valerie McKenna as members of the Board of Education of the Lindenhurst Union Free School District.

Decision No. 17,160

(August 22, 2017)

Guercio & Guercio, LLP, attorneys for respondents, Eric Levine, Esq., of counsel

ELIA, Commissioner.--Petitioners seek the removal of Robert Vitiello and Valerie McKenna (“individual respondents” or, collectively, “respondents”) as members of the Board of Education of the Lindenhurst Union Free School District.  The application must be denied.

On April 19, 2016, petitioners and their daughter attended a board of education community forum.  At this community forum, petitioner Deborah Lyons-Birsner spoke regarding alleged “special education violations” committed by the district.  After the community forum ended, respondents Vitiello and McKenna approached petitioner Deborah Lyons-Birsner and spoke with her about her presentation.

At this point the accounts of petitioners and respondents diverge.  With respect to respondent Vitiello, petitioners contend that he “came off the stage in a threatening and menacing” manner; “screamed and yelled”; characterized petitioner Deborah Lyons-Birsner’s behavior as “disgusting”; and stated that “this was no place to discuss this [issue].”  Petitioners further assert that respondent Vitiello “had to be forcibly removed ... from the auditorium.”  Respondent Vitiello denies petitioners’ allegations and states that he merely told petitioner Deborah Lyons-Birsner that: “[i]f you have anything to say to an administrator, you should speak to them [sic] directly.”

Petitioners allege that respondent McKenna told petitioner Deborah Lyons-Birsner that she “should be ashamed of what [she] just said” and said the following to petitioners’ daughter:

You[,] missy, your mother was wrong.  You should be ashamed of what your mother said.  Her name disgusts me.  You should be embarrassed of what your mother said.

Respondent McKenna denies that she spoke to petitioners’ daughter and asserts that she merely told petitioner Deborah Lyons-Birsner, in the presence of her daughter, that: “[y]ou should be ashamed of yourself, speaking like that in front of your child.  You embarrassed yourself.”  This appeal ensued.

Petitioners allege that the conduct of respondents Vitiello and McKenna constitutes a wilful violation or neglect of duty under the Education Law and seek their removal from the board of education.

Respondents contend that the appeal must be dismissed as untimely, for failure to join necessary parties and for inadequate notice.  Respondents further contend that their actions did not rise to the level of wilful misconduct which would justify their removal from office.

I must first address various procedural issues. Sections 275.5 and 275.6 of the Commissioner's regulations require that all pleadings in an appeal to the Commissioner be verified and that an affidavit of verification be attached thereto.  Petitioners' reply is not verified as required by §§275.5 and 275.6 and I have therefore not considered it or the attachments thereto (see Appeal of McAvey, 56 Ed Dept Rep, Decision No. 16,978; Appeal of a Student With a Disability, 46 id. 102, Decision No. 15,454; Appeal of Principio, 39 id. 11, Decision No. 14,157).  Accordingly, respondents’ related request for permission to submit a sur-reply is denied.

The appeal 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).

Here, the conduct giving rise to the instant application occurred on April 19, 2016; thus, petitioners were required to serve a petition on or before May 19, 2016.  Petitioners’ service of the petition on June 3, 2016, then, was untimely.  Petitioners do not set forth good cause, or any cause, in their petition to excuse this delay as required by 8 NYCRR §275.16.  With their reply, which as noted above has been rejected because it is not verified, petitioners submit a document entitled “Extension of the Initial Notice of Petition” in which petitioner Deborah Lyons-Birsner alleges that she was not focused on the time to bring an appeal because the family was devastated by the death of a pet dog in March 2016, followed by the illness and death of a second pet dog after several weeks of treatment.  However, this document is unverified, has been rejected with the reply and was not included in the petition, which is dated June 2016.  In any case, while I acknowledge that the illness and loss of the pets was upsetting to petitioners, even if I had accepted petitioners’ submission, I would not find that petitioners established good cause for the delay (cf. Appeal of Jarosz, 34 Ed Dept Rep 600, Decision No. 13,423 [holding that personal illness is an insufficient excuse for a delay in commencing an appeal]).  Therefore, the application must be denied as untimely.

Petitioners’ application must also be denied for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

Here, petitioners seek removal of board members Vitiello and McKenna, whose rights would clearly be adversely affected if the application were granted and they must be joined as necessary parties (see e.g., Application of Simmons, 43 Ed Dept Rep 7, Decision No. 14,899).  The affidavit of service submitted by petitioners indicates that service was made on the district clerk and there is no evidence in the record that the district clerk was authorized to accept service on behalf of the individual respondents.  Service upon the district clerk did not secure personal jurisdiction over the individual respondents whom petitioners seek to have removed from office.  Therefore, the application must be denied for lack of personal service and, consequently, failure to join them as necessary parties (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of D’Angelo, 55 id., Decision No. 16,896).

The application must also be denied because the notice of petition is fatally defective.  Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office pursuant to Education Law §306.  In this case, petitioner failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective, and does not secure jurisdiction over the intended respondent (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660).  It is the notice of petition that alerts a party that he or she is the subject of removal proceedings, and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

Even if the application were not subject to dismissal on procedural grounds, it 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, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).

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).

It is clear from the record that after petitioner Deborah Lyons-Birsner made her presentation at the community forum, the two individual respondents approached her and berated her for her remarks.  Respondents assert in affidavits that they reacted to what they perceived as inappropriate and personal attacks on a school administrator.  The parties differ widely in their descriptions of the event.  Petitioners assert that respondent Vitiello came off the stage in a “threatening and menacing” manner and screamed at petitioner Deborah Lyons-Birsner in front of her daughter, and that respondent McKenna directly addressed petitioners’ daughter and disparaged petitioner Deborah Lyons-Birsner.  Respondent Vitiello denies that he made any statements in an abusive, intimidating and/or harassing manner and respondent McKenna denies speaking directly to petitioners’ daughter, which is supported by affidavits submitted by two other board members who witnessed the interaction.

On this record, petitioners have not proven any wilful violation or neglect of duty under the Education Law which would warrant removal of the individual respondents from office.  While the record indicates that respondents berated petitioner Deborah Lyons-Birsner in a manner which she perceived to be aggressive, the Commissioner has long held that impolite, rude or even aggressive speech is not, by itself, enough to warrant removal (see e.g., Application of the Bd. of Educ. of the City Sch. Dist. of the City of Gloversville, 52 Ed Dept Rep, Decision No. 16,857; Appeal of Lilly, 43 id. 459, Decision No. 15,050; Matter of the Bd. of Educ. of the West Babylon Union Free Sch. Dist, 21 id. 41, Decision No. 10,592).  Moreover, a single isolated instance of inappropriate or unbecoming speech by a board member is not ordinarily grounds for removal (Application of the Bd. of Educ. of the Lawrence Union Free Sch. Dist., 39 Ed Dept Rep 523, Decision No. 14,299; Application of O'Mara, 37 id. 122, Decision No. 13,819).  In this case, it is clear that respondents were angry about petitioner Deborah Lyons-Birsner’s presentation and, in the heat of the moment, made disparaging remarks to her in the presence of her daughter, which was inappropriate.  However, petitioners have not proven that respondents’ conduct violated any law, nor am I persuaded that there are any aggravating factors which would warrant removal based upon this single incident.

Although petitioners have not pled or proved sufficient grounds for respondents’ removal, I remind respondents that district residents have the right to attend board of education meetings and speak about issues of concern, including their views regarding the performance of district staff.[1]  While respondents contend that petitioner Deborah Lyons-Birsner “repeatedly and unfairly leveled personal insults and accusations” against a school administrator, it does not appear from the record that her comments warranted responses as heated as respondent McKenna’s statements that petitioner Deborah Lyons-Birsner should be “ashamed” of herself, and that she “embarrassed” herself.[2]  Additionally, it was inappropriate for respondents to berate petitioner Deborah Lyons-Birsner in the presence of her daughter.  I remind respondents to “comport [them]selves in the future in a manner befitting [] holder[s] of public office” (Matter of Bd. of Educ. of the Dansville Cent. Sch. Dist., 22 Ed Dept Rep 240, Decision No. 10,947).

THE APPLICATION IS DENIED.

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