Application of MONIQUE MCCRAY for the removal of Fred Philips as President and board member, Daniel Devine as Vice President and board member, and William G. Softy, as member of the Board of Education of the Central Islip Union Free School District, and for the removal of Norman Wagner as Administrator for Buildings Ground and Security, Kevin Seaman, Esq., as School Board Attorney and Dr. Craig Carr, as Superintendent.

Decision No. 17,240

(November 1, 2017)

Law Offices of Thomas M. Volz, PLLC, attorneys for respondents, Thomas M. Volz, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks the removal of Fred Philips as president and board member, Daniel Devine as vice president and board member, and William G. Softy as member of the Board of Education of the Central Islip Union Free School District (“board” or “respondent board”); and the removal of Norman Wagner, as Administrator for Buildings Ground and Security;[1] Kevin Seaman, Esq., as School Board Attorney and Superintendent Craig Carr (collectively, “respondents”).  The removal application must be denied.  

At the time of the events giving rise to this application, petitioner was a board member, respondent Fred Philips was board president, and Daniel Devine was the
board’s vice president.[2]  Also at that time, Norman Wagner was Administrative Assistant for Operations and Craig Carr was superintendent of schools for the district.[3]   

The parties dispute certain facts in this application.  Petitioner indicates that, upon learning that a particular applicant (the “applicant”) was being considered for a security guard position[4] with the district in a September 3, 2013 phone conversation with Dr. Carr, she expressed her concerns that the candidate was a threat to the safety of the children of the district - particularly, that she had witnessed the individual being detained in the Suffolk County Correctional Facility – and recommended that a thorough background check be conducted.  Respondents indicate that petitioner sought to have the applicant removed from the agenda of the July 8, 2013 board meeting, claiming that he was disreputable and not fit to be around children.  In any event, the record indicates that respondents Carr, Wagner and Seaman either conducted, were aware of, or were in receipt of, multiple background checks on the applicant from various sources (New York State Unified Court System; New York State Department of State, Division of Licensing; and New York State Education Department, Office of School Personnel Review and Accountability [“OSPRA”]), at different points in time between December 2012 and October 2013.  Petitioner was advised that these background checks came back “clean” or within acceptable parameters that permitted the applicant to be cleared for employment within the district.  The applicant’s name appeared on the July 8 and September 9, 2013 board meeting agendas.  On October 15, 2013, at a regular meeting of the board, a motion was brought to approve the appointment of the applicant which was acted upon by the board.[5]

Petitioner continued to pursue the issue of the applicant’s criminal background throughout November 2013.  Petitioner states that she obtained a background check on the applicant from the Suffolk County police department’s central records division which she presented to respondents showing two DWI’s, illegal operation of a motor vehicle while intoxicated, possession of a loaded shotgun, resisting arrest, criminal impersonation and criminal possession of a controlled substance. 

Petitioner asserts that “in [r]espondent[s’] relentless pursuit to hire [the applicant], despite [petitioner’s] warnings of criminal mischief,” respondents neglected their duty under Subpart 28-1 of the Rules of the Board of Regents relating to the determination of good moral character and showed “intentional” and “wrongful purpose” in disregard of their lawful duties as school board members and administrators.  Petitioner also contends that respondent Softy “retaliated” against her in the presence of the parties and “verbally attacked” her regarding this issue.  Further, according to petitioner, all respondents “acted in a willfully careless, reckless and negligent manner” at board meetings/workshops on September 4, October 9, and October 15, 2013 “without any regard for the physical, mental and/or emotional well-being of the children” of the district. Petitioner states that respondents “volatile and provoking behavior” prevented her from carrying out her duties as a board member in violation of the law and that she has been “verbally assaulted” and has been a “victim of slander.”  Petitioner also states that respondents violated their fiduciary duties by disclosing and revealing information learned in executive session to third parties in violation of the law, and that she received verbal threats against herself and her family as a result. Finally, petitioner contends that respondents willfully violated the law and were negligent in failing to examine a potential district employee’s moral character, and failing to report information and perform a complete investigation with respect to alleged crimes.

Petitioner requests removal of respondents from their respective positions for failure to properly investigate and assess the moral character of a candidate-employee for the district and for failing to safeguard the children of the district from persons convicted of criminal possession of a controlled substance among other crimes, for being grossly negligent in ignoring allegations of criminal mischief, for failing to report information in connection to crimes, and for violating fiduciary duties to protect the “integrity and sacredness” of information disclosed while in executive sessions with unauthorized and uninterested third parties.

Respondents assert that during the entire process, they acted in good faith and exercised a high degree of care and that even though the applicant had previously been vetted by the district and remained employed by the board in another position, respondents took petitioner’s allegations seriously and agreed to investigate further.  Respondents state that respondents Carr, Wagner and Seaman ensured that the applicant’s background was thoroughly investigated and did not reveal any information that would have justified not hiring him.  Respondents also contend that the list of alleged activities on the background check document submitted by petitioner were not cited on background checks obtained from the State Education Department and the Department of State, and argue that the information on the “alleged background check, if accurate” is not information which would justify a district deciding not to hire the applicant.     

Respondents contend that the application is untimely, that petitioner has failed to name a necessary party (the applicant), and that the proceeding is moot because respondents did not, in fact, appoint the individual to the security guard position.  Respondents also contend that the petition fails to set forth a viable claim for removal under Education Law §306 against respondents Seaman (school attorney) and Wagner (a school district employee), nor against the other respondents (board members/school officers) for the wilful, intentional violation of law or neglect of duty.  Respondents argue that the petition fails to specify the claimed breaches of confidentiality regarding information received in executive session and that petitioner’s claims of verbal assault, slander, retaliation and other alleged tortious conduct are beyond the jurisdiction of the Commissioner.  Finally, respondents request certificates of good faith in accordance with Education Law §3811.

I will first address several procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

To the extent petitioner seeks the removal of respondents Fred Philips as president and Daniel Devine as vice president of the board, the application must be denied as moot (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Application of Dinan, 36 id. 370, Decision No. 13,752).  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).  Fred Philips and Daniel Devine no longer serve as president and vice president of the board of education.  The application is therefore denied to the extent that it seeks their removal as president and vice president of the board, respectively.  However, because these respondents remain elected members of the board, petitioner's request for their removal as members of the board is not moot (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Application of Dinan, 36 id. 370, Decision No. 13,752).

The application for the removal of Craig Carr as superintendent must also be denied as moot because he no longer serves as superintendent of schools for the district. 

To the extent petitioner seeks to remove Norman Wagner from his position of Administrative Assistant for Operations, the application must be denied.  First, because Norman Wagner no longer serves in this capacity and second, because he was not a board member or school officer at the time of the events which gave rise to petitioner’s application for removal.  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).  Education Law §306 authorizes the Commissioner to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer.  Education Law §2(13) defines “school officer” by specifically identifying a number of positions and including any “other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system” (Appeal of Johnston, 50 Ed Dept Rep, Decision No. 16,184).  

The record indicates that Norman Wagner was the Administrative Assistant for Operations at the time of the events alleged in this application.  An administrative assistant is not specifically enumerated as a school officer within the statute, and other than petitioner’s conclusory assertions, there is nothing in the record to suggest that the administrative assistant in this case is a school officer (see Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583 [assistant superintendent is not a school officer]; Appeal of Berman, 46 id. 64, Decision No. 15,442 [deputy superintendent is not a school officer]).  As Norman Wagner was a district employee, I lack jurisdiction to remove him pursuant to Education Law §306 (see Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Berman, 46 id. 64, Decision No. 15,442).

Insofar as petitioner seeks removal of respondent Seaman, the application must be denied because a school attorney is not an officer of the district and the Commissioner of Education, therefore, has no jurisdiction to remove him (Appeals of Stepien and Lilly, 47 Ed Dept Rep 388, Decision No. 15,732; Application of a Child with a Handicapping Condition, 31 id. 212, Decision No. 12,623; Matter of the Application of Rojek and Spadone, 24 id. 434, Decision No. 11,453).

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).  Because the application seeks removal of respondents and does not seek any relief as it relates to the applicant or the security guard position, I do not find that the applicant is a party whose rights would be adversely affected by a determination on the application in favor of petitioner.

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).  In addition, 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).  As noted above, in the petition, the earliest date petitioner indicates that she was aware that the applicant was being considered for a security guard position with the district was September 3, 2013, at which time she relayed her concerns to respondent Carr, while respondents indicate that this was an item on the board’s July 8, 2013 meeting agenda.  In any event, the record indicates that the board took action on the motion for the applicant’s employment on October 15, 2013, after multiple security background checks were obtained or completed by respondents.  Petitioner’s application was served on respondents on December 5, 2013, except for respondent Seaman who was served on December 9, 2013, all of which dates were beyond 30 days from October 15, 2013.  Thus, the application must be denied as untimely. 

To the extent that petitioner argues that her application is timely because her action was commenced within 30 days of her good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application, this argument also fails.  Petitioner states that “on November 7th, 2013 [she] received evidence that her allegations and observations of [the applicant] were accurate” and her petition was filed within 30 days of that date.  However, any effort by petitioner to gather or obtain additional information does not excuse the delay in bringing the application, especially where, by her own assertion in the petition, petitioner was aware of alleged criminal activities of the applicant at least since September 2013 (see Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Application of Chiacchia, 53 id., Decision No. 16,593; Appeal of Business Systems of CNY, Inc., 46 id. 464, Decision No. 15,564).  Accordingly, petitioner’s application must be denied as untimely.

Even if the application were not denied on procedural grounds, it would be denied on the merits.  With respect to the board members and superintendent who are subject to Education Law §306, on this record, petitioner has failed to establish facts sufficient to warrant their removal. 

As noted above, 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).  To be considered wilful, the board member or officer’s actions must have been intentional and with a wrongful purpose (see Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315).  In an appeal or removal application 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; Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315).

     Here, the actions of which petitioner complains do not rise to the level of wilful violation or neglect of duty under the Education Law (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315).  First, I note that, although the applicant was considered for the security guard position at one point, the record indicates that the applicant was never appointed to the security guard position by the district or further considered for appointment at meetings of the board.  Further, other than her conclusory assertions, petitioner has submitted no evidence that the actions alleged were intentional and with a wrongful purpose.  Nor has petitioner articulated any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education that such respondents have wilfully disobeyed.  While petitioner cites Part 28 of the Commissioner’s regulations with regard to the determination of good moral character, these provisions only apply to the licensed professions governed by Title VIII of the Education Law, which do not include security guards.  

With respect to petitioner’s allegations that respondents improperly divulged confidential information, it is well-settled that a board member’s disclosure of confidential information obtained at a properly-convened executive session of a board meeting violates General Municipal Law §805-a(1)(b) and may constitute grounds for a board member’s removal from office pursuant to Education Law §306 (see Application of the Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147; Application of Nett and Raby, 45 id. 259, Decision No. 15,315; Applications of Balen, 40 id. 250, Decision No. 14,474).  However, beyond conclusory allegations, petitioner has produced no evidence in support of her claim and has thus not carried her burden of proof in this regard.

Although the application must be denied on procedural grounds, respondents’ request for a certificate of good faith pursuant to Education Law §3811(1) remains.  Such certification is solely for the purpose of authorizing the board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in §3811(1).  It is appropriate to issue such certification unless it is established on the record that the requesting respondent acted in bad faith (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594; Application of Lieberman, 52 id., Decision No. 16,483).  In view of the fact that the application here is denied on procedural grounds and there has been no finding that respondents acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that respondents Philips, Devine and Softy are entitled to receive the requested certificate.  As Education Law §3811(1) also applies to superintendents and non-instructional school district employees, I also certify that respondents Carr and Wagner (who the record indicates was a non-instructional district employee at the time of the events giving rise to the application for removal) are entitled to receive the requested certificate (Education Law §3811[1]; Appeal of Affronti, 54 Ed Dept Rep, Decision No. 16,756; Appeal of Johnston, 50 id., Decision No. 16,184; Appeal of Berman, 46 id. 64, Decision No. 15,442).[6]

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

THE APPLICATION IS DENIED.

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