Decision No. 17,204
Appeal of CATHERINE SCHRAUTH FORCUCCI from action of the Board of Education of the Hamburg Central School District regarding her removal as a member of the board.
Decision No. 17,204
(October 3, 2017)
Murphy Meyers LLP, attorneys for petitioner, Margaret A. Murphy, Esq., of counsel
Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel
ELIA, Commissioner.--Petitioner seeks to reverse a determination by the Board of Education of the Hamburg Central School District (“respondent” or “board”) to initiate removal charges against her pursuant to Education Law §1709(18). The appeal must be dismissed.
On May 21, 2013, petitioner was elected to the board for a three-year term. On April 30, 2014, the board held a special meeting where it voted to pursue removal charges against petitioner. At this meeting, which petitioner did not attend, the board approved three motions by a 4-2 vote which: (1) charged petitioner with official misconduct pursuant to Education Law §1709(18); (2) appointed a board attorney to prosecute the charges; and (3) designated an attorney to serve as a hearing officer for the removal hearing. As relevant to this appeal, Board President David Yoviene was one of the four board members who voted in favor of the motions.
On May 3, 2014, petitioner’s counsel accepted service of a formal statement of charges which alleged that petitioner had engaged in a pattern of official misconduct and that her actions were confrontational and interfered with the board’s ability to function. Specifically, the statement of charges set forth twelve specifications of misconduct which alleged numerous incidents in which she, among other things, berated or verbally attacked district personnel, invaded the personal space of others, refused to comply with orders, improperly photographed personnel records and improperly destroyed a document. This appeal ensued. Petitioner’s request for interim relief was denied on May 23, 2014.
Petitioner argues that Board President Yoviene should have been disqualified from voting on the motions regarding the removal charges at the April 30 meeting. Petitioner further argues that, without Board President Yoviene’s vote, the board did not have the proper number of votes to initiate removal charges against her. Petitioner also claims that the charges were not sufficiently detailed as to provide her with information regarding what she is supposed to refute at the removal hearing. Petitioner seeks determinations that respondent lacked sufficient votes to initiate removal proceedings and that the charges against her were facially insufficient.
Respondent contends that petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested. Respondent further argues that petitioner has not provided any legal authority for her contention that an allegedly biased board member may not vote to initiate removal charges.
I must first address a procedural matter. By letter dated May 16, 2014, petitioner submitted for consideration an additional affidavit with exhibits. Additional affidavits, exhibits and other supporting 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 originally 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).
I have reviewed the proposed submission, which consists of correspondence between the parties which occurred after service of the petition and concerns the scheduling of the removal hearing. I will accept this submission as it does not raise any new claims and I find that respondent board is not prejudiced by my consideration of these additional documents (Appeal of Thomas, 54 Ed Dept Rep, Decision No. 16,669).
Turning to the merits, 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).
Petitioner argues that the board lacked sufficient votes to approve charges against her because Board President Yoviene was biased and, therefore, should have been disqualified from voting. In support of this contention, petitioner refers to and submits numerous newspaper articles and public statements detailing the acrimonious relationship between various board members and the superintendent. In particular, petitioner complains of an incident in which the superintendent alleged that his vehicle had been vandalized, and Board President Yoviene allegedly told a fellow board member that he believed petitioner was responsible for the vandalism. Petitioner further complains that Board President Yoviene told a reporter that petitioner had been a “headache” since she took office and that Board President Yoviene is referenced within some of the charges against petitioner. Respondent denies in its answer that Board President Yoviene speculated that petitioner damaged the superintendent’s vehicle and, in an affidavit, Board President Yoviene generally avers that he is not biased against petitioner.
Before addressing petitioner’s claim of bias, I note that a distinction must be drawn between a board member’s vote to authorize removal proceedings (the “initiation level”) and his or her vote to sustain charges of official misconduct following a full and fair opportunity for the subject of such charges to refute them (the “final determination level”) (see Education Law §1709). Although a board member harboring an “adverse animus” should not be allowed to participate in the “decision-rending” aspect of a removal proceeding, petitioner cites no authority indicating that this standard is applicable to a board member’s vote to initiate removal proceedings (Komyathy v. Bd. of Educ. of Wappinger Central School Dist. 75 Misc2d 859). The danger of bias or prejudice at the initiation level is much less acute because any finding of official misconduct may only occur after a board member is afforded a full and fair opportunity to refute the charges against him or her (see Appeals of Hoefer, 45 Ed Dept Rep 66, Decision No. 15,263).
By way of illustration, while the court in Komyathy v. Bd. of Educ. of Wappinger Cent. School Dist. No. 1 (75 Misc2d 859) disqualified a biased board member from determining whether the plaintiff had committed official misconduct, it did not question the biased board member’s ability to vote to authorize the charges in the first instance. Indeed, prior to the vote, the biased board member had been assaulted by the plaintiff and had commenced a civil action against the board member for such assault.
The authority relied upon by petitioner is inapposite as it involves disqualification at the final determination level (Komyathy v. Bd. of Educ. of Wappinger Central School Dist., 75 Misc2d 859; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785; judgment granted dismissing petition to review sub nom. Gill v. Mills, et al., Sup. Ct., Albany Co., Bradley, J.; October 6, 2003, n.o.r.; cf. Appeal of D.J.H., 45 Ed Dept Rep 45, Decision No. 15,255).
Moreover, even assuming, arguendo, that the bias standard applicable to the final determination level must also be applied at the initiation level, petitioner has not met her burden of proof to show that Board President Yoviene was, in fact, biased against petitioner. The facts alleged by petitioner do not rise to the level of bias demanded by case law and prior decisions of the Commissioner (see e.g., Komyathy v. Bd. of Educ. of Wappinger Central School Dist., 75 Misc2d 859 [bias demonstrated where a board member had been assaulted and commenced a civil action against the petitioner]; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785; judgment granted dismissing petition to review sub nom. Gill v. Mills, et al., Sup. Ct., Albany Co., Bradley, J.; October 6, 2003, n.o.r. [noting that bias demonstrated where the biased board member was facing criminal charges for assaulting petitioner]; Appeal of D.J.H., 45 Ed Dept Rep 45, Decision No. 15,255 [noting that bias demonstrated where, prior to a determination as to whether to terminate petitioner’s employment, board member publicly picketed with a sign indicating that petitioner “must go”]). Accordingly, I find that petitioner has failed to meet her burden of demonstrating that Board President Yoviene should have been disqualified at the initiation level (Appeal of Balen, 40 Ed Dept Rep 479, Decision No. 14,532).
I also find no merit in petitioner’s claim that the statement of charges is deficient. According to petitioner, the charges do not allege official misconduct and do not sufficiently identify specific factual details which would afford her an opportunity to prepare a defense. On the record before me, I find that petitioner was afforded sufficient due process to satisfy this standard. The statement of charges was sufficiently detailed so as to apprise petitioner of the alleged official misconduct which would be at issue at the hearing (Appeal of Jones-White, 44 Ed Dept Rep 347, Decision No. 15,194; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785; judgment granted dismissing petition to review sub nom. Gill v. Mills, et al., Sup. Ct., Albany Co., Bradley, J.; October 6, 2003, n.o.r.). Each charge identified the date when the alleged conduct occurred and a specific description of the objectionable conduct. Therefore, petitioner’s claims are without merit and must be dismissed.
I have considered the parties’ remaining arguments and find them without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 The removal hearing was scheduled to begin on May 27, 2014.
 It is well-settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Jiava, 55 Ed Dept Rep, Decision No. 16,817). Therefore, I have not considered such articles for the veracity of their content.  While charge three is somewhat vague in that it refers to conduct which allegedly occurred following an executive session in “approximately October 2013,” petitioner has not challenged the specificity of this charge nor argued that she does not know which executive session the charge references.