Decision No. 17,264
Application of DR. DAVID B. GATES for the removal of Maribel Touré, as president and trustee, and Gwendolyn Jackson, as trustee of the Board of Education of the Hempstead Union Free School District and from actions of such Board of Education regarding removal of a board trustee.
Decision No. 17,264
(November 27, 2017)
Raiser & Kenniff, PC, attorneys for respondent Board of Education of the Union Free School District, Ethan D. Irwin, Esq., of counsel
Sokoloff Stern LLP, attorneys for respondents Maribel Touré, Gwendolyn Jackson, and Mary Crosson, Melissa L. Holtzer, Esq., of counsel
ELIA, Commissioner.--Petitioner seeks the removal of Maribel Touré (“Touré”) and Gwendolyn Jackson (“Jackson”) from their positions as president and trustees, respectively, of the Board of Education of the Hempstead Union Free School District (“board”) (collectively, “respondents”). It appears from the notice of petition that petitioner further appeals from the actions of the board related to the removal of former trustee Lamont E. Johnson (“Johnson”), though the petition does not request any relief in this regard. The application must be denied and the appeal dismissed.
Petitioner is a trustee on respondent’s board. The petition contains over 100 paragraphs describing the contentious relationship among the board trustees and alleging various acts of misconduct, abuse of power, and abuse of public office. The gravamen of petitioner’s complaint and the basis for the removal application is respondent board’s removal of former trustee Johnson pursuant to Education Law §1709(18). In Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263, Johnson appealed his removal pursuant to Education Law §310. Although petitioner herein seeks the removal of individual respondents Touré and Jackson based on their conduct surrounding Johnson’s removal, the factual allegations that form the basis for petitioner’s claim are largely the same as those set forth in Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263. In sum and substance, on May 16, 2017, former trustee Melissa Figueroa (“Figueroa”) lost her board seat to trustee Randy Stith (“Stith”) and Johnson was re-elected to the board. On May 31, 2017, a majority of the board voted (3-2) to appoint special counsel to commence an investigation to determine whether Johnson disclosed district employee names and addresses to the Stith campaign. On June 8, 2017, a majority of the board voted (3-0) to prefer charges against Johnson for official misconduct for allegedly disclosing confidential district employee names and addresses to the Stith campaign. A hearing commenced on June 19, 2017, and concluded on June 30, 2017, with the hearing officer’s recommendation to remove Johnson, and on June 30, 2017, Figueroa’s last day in office, a majority of the board voted to remove Johnson (3-1).
This proceeding ensued. Petitioner’s request for interim relief was denied on August 22, 2017.
Petitioner seeks the removal of Touré and Jackson from their positions as president and trustees, respectively. He asserts that, on June 30, 2017, Touré and Jackson “effectuated a coup d’état, effectively reversing the outcome of the democratic process after the May 16, 2017 School Board Election.” Petitioner asserts that, on June 30, 2017, Touré, with the help of Jackson, “politically weaponized the power of removal vested in the BOE by NYS Education Law §1709(18), and misused and abused her power as BOE president, to cause the BOE to remove Trustee Lamont Johnson, without cause, and not for misconduct, but rather to punish him for being her political rival” and appointing her “political associate, Mary Crosson” to fill his vacancy. He further asserts that, on July 5, 2017, Touré, with help from Jackson, “completed her scheme to stay in power as BOE President, and to stay in control of the BOE with a 3-2 voting majority ... when she was re-elected as BOE President.”
Respondent board denies “any and all allegations of collusion, impropriety, misconduct, and illegality.” It asserts many “affirmative defenses,” including that the application must be dismissed as untimely and for lack of standing, and for lack of subject matter jurisdiction and personal jurisdiction. Respondent board generally asserts that the proceeding must be dismissed based upon the doctrines of laches, waiver, and unclean hands. It further contends that the action is duplicative of another pending action and may not be maintained because of the doctrines of collateral estoppel, res judicata, and election of remedies. Respondent board asserts that its official actions constitute a good faith exercise of discretion and judgment.
I must first address the procedural issues. In his reply, petitioner asserts that respondents Touré, Jackson, and Crosson (the “individual respondents”) defaulted in answering the verified petition, and as such, the factual allegations as to the individual respondents must be deemed true. By letter dated August 22, 2017, counsel for the individual respondents informed my Office of Counsel that she was retained by the individual respondents on August 17, 2017, and requested an extension of time in which to serve an answer. By letter dated August 24, 2017, my Office of Counsel further informed the individual respondents that Commissioner’s regulations §§275.9 and 275.13 “require that each respondent upon whom a copy of a petition has been served shall serve and file an answer thereto” and that “no answer was filed with this office within the time allotted.” By letter dated August 28, 2017, my Office of Counsel further advised the individual respondents’ counsel that their answers were due on August 16, 2017, and that, “[b]ecause the time in which to serve an answer pursuant to §275.13 of the Commissioner’s regulations has passed,” no extension of time would be granted.
By letter dated September 22, 2017, the individual respondents, by and through their counsel, interposed a verified answer. Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service. Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3). Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589). The Commissioner, in his/her sole discretion, may excuse a failure to serve an answer within the time prescribed (8 NYCRR §273.13[b]). The reasons for such failure shall be set forth in the answer (8 NYCRR §273.13[b]). In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813). Neither the late answer nor the September 22, 2017 letter contains any explanation for the individual respondents’ failure to serve an answer within the time prescribed (8 NYCRR §275.13[b]). The record indicates that the individual respondents were served during the same time frame as respondent board. Respondent board’s counsel interposed an answer on behalf of respondent board only. Furthermore, the record indicates that the individual respondents retained counsel on August 17, 2017, after their time to serve an answer had expired; yet, the late answer was not served until September 22, 2017, after petitioner had already served his verified reply and memorandum of law. The individual respondents provide no explanation for their failure to retain counsel or request an extension of time until after the deadline to submit an answer had passed. Accordingly, I have not accepted the individual respondents’ answer, and petitioner’s factual statements as to the individual respondents are deemed to be true (see 8 NYCRR §275.11(a); Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).
Respondent board asserts that, to the extent petitioner appeals from action of the board relating to the removal of Johnson, the appeal must be dismissed for lack of standing. Petitioner asserts that he is a taxpayer of the district and member of the board, and as such, has standing to seek the removal of Touré and Jackson. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744; Appeal of Houdek, 47 id. 415, Decision No. 15,740). Petitioner is a district resident and taxpayer and thus has standing to bring a removal proceeding against his elected officials pursuant to Education Law §306 (Appeal and Application of Gates, et al., 57 Ed Dept Rep, Decision No. 17,188; Application of Wilson, 41 id. 196, Decision No. 14,663; Application of Eisenkraft, 38 id. 553, Decision No. 14,092). However, respondent is correct that petitioner lacks standing to assert the rights of others (see e.g. Appeal of Walker, 53 Ed Dept Rep, Decision No. 16,609; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Therefore, to the extent petitioner appeals the board’s determination to remove Johnson, the appeal is dismissed for lack of standing.
Respondent board also asserts that the appeal must be dismissed for failure to join Johnson and Figueroa as 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). Respondent board has not established that the rights of either Johnson or Figueroa would be adversely affected by the removal of respondents Touré and Jackson. Therefore, they are not necessary parties to the application and the application will not be dismissed for failure to join them. To the extent petitioner is seeking to appeal from respondent’s actions relating to the removal of Johnson, the appeal has been dismissed for lack of standing and thus I need not address the issue of joinder with respect to such appeal.
Respondent board alleges that since petitioner and Stith previously filed an Article 78 proceeding in State Supreme Court seeking “the same or similar relief,” he is barred from seeking the same relief in an appeal under Education Law §310 under the doctrines of collateral estoppel, res judicata, and election of remedies. Although that proceeding was dismissed for lack of standing and for failure to exhaust administrative remedies, it does not appear that petitioner sought the removal of Touré and Jackson in that proceeding, which appears to have challenged the two resolutions related to respondent Crosson’s appointment. Thus, I do not find that petitioner has elected a remedy which precludes me from reaching the merits of the application for removal (Appeal of Kolessar, 56 Ed Dept Rep, Decision No. 17,035; Appeal of Goldberg and Goldberg, 36 id. 470, Decision No. 13,778). Moreover, even if petitioner did seek the same or similar relief in the Article 78 proceeding, the record indicates that petitioner did not receive a determination on the merits which would bar petitioner from relitigating those issues here (see Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of Goldberg and Goldberg, 36 id. 470; Decision No. 13,778; cf. Appeal of Friedman, 32 id. 447, Decision No. 12,882; Appeal of Tobin, 30 id. 315, Decision No. 12,477; Appeal of Roth, 26 id. 165, Decision No. 11,715; Matter of Monaco, 24 id. 348, Decision No. 11,421). Therefore, I decline to dismiss the application under the doctrines of res judicata, collateral estoppel, or election of remedies.
Turning to 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).
Petitioner's application for the removal of respondent trustees Touré and Jackson must be denied. Petitioner asserts that respondents violated my “directives” in Appeal of Watson, et al., 56 Ed Dept Rep, Decision No. 17,082, in which I admonished the district and the board “to take all steps necessary to ensure that such controversy does not continue and that the district’s leadership and resources are focused on the paramount goal of providing successful outcomes for students.” However, such admonishment is not a decision, order, rule or regulation of the Board of Regents or Commissioner of Education as contemplated by Education Law §306.
Petitioner also asserts that respondents Touré and Jackson “violated petitioner’s rights and duties as a fellow BOE trustee during all phases of the removal proceeding.” Specifically, petitioner asserts that he was excluded from all proceedings pursuant to Education Law §1709(18) and sequestered as a witness for Johnson and therefore not allowed to be in the room in which the hearing was conducted, and then was not allowed to testify in support of petitioner’s defense. Further, petitioner asserts that on June 30, 2017, at 10:00 a.m., he attempted to enter the hearing room to “be sure that the hearing officer was aware we were there as witnesses for Lamont and were waiting to testify” but was “denied access to the Board Room.” Petitioner asserts that Touré and Jackson were aware that petitioner was “knocking on the door and demanding entry into the room” but kept him locked out. Moreover, petitioner claims that on June 30, 2017, over his objection, respondents voted to remove Johnson and appoint Crosson to fill his vacancy, notwithstanding that petitioner had been sequestered the entire time and had not heard any of the testimony or had an opportunity to provide his own testimony.
Although I do not condone how the removal proceeding was handled (see Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263), petitioner has not articulated or established how such conduct amounts to a wilful violation of a decision, order, rule or regulation of the Board of Regents or Commissioner of Education as contemplated in Education Law §306. At best, petitioner appears to allege that respondents violated Education Law §1709(18) by failing to provide a full and fair opportunity for Johnson to be heard and to prove official misconduct. Many of petitioner’s complaints about the procedures followed in Johnson’s hearing relate to actions by the hearing officer appointed by respondent board. Such conduct by the hearing officer and the board has been addressed in Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263, an appeal brought by Johnson himself challenging his own removal.
Petitioner offers conclusory statements that respondent trustees abused their power in removing Johnson pursuant to Education Law §1709(18). In Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263, I found, among other things, that the board as a whole failed to provide Johnson with a full and fair opportunity to be heard and to prove official misconduct. However, even if such board action may be attributed to Touré and Jackson by virtue of their votes in favor of Johnson’s removal, petitioner has failed to establish that Touré and Jackson’s conduct amounts to a wilful violation or neglect of duty under the Education Law or other law applicable to the schools that would warrant their removal or that they have wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Appeal of Gates, et al., 57 Ed Dept Rep, Decision No. 17,188; Appeal of Andrews, 31 id. 453, Decision No. 12,697; Appeal of Young, 24 id. 313, Decision No. 11,405). Respondent has authority to remove a board member for official misconduct pursuant to Education Law §1709(18), and if proven, Johnson’s alleged conduct in disclosing confidential information in violation of General Municipal §805-a(b) could have constituted official misconduct. The fact that I have determined in Appeal of Johnson, on a disputed record, that respondent board’s actions with respect to Johnson’s removal must be overturned, does not establish that respondents Touré and Jackson engaged in a wilful violation of law or neglect of duty.
Accordingly, petitioner has not met his burden to establish grounds for the removal of respondent trustees.
In light of this determination, I need not address the parties’ remaining contentions.
THE APPLICATION IS DENIED AND THE APPEAL IS DISMISSED.
END OF FILE
 Although Mary Crosson is also named as a respondent in the caption, the petition does not request her removal. To the extent petitioner is attempting to bring an application for the removal of Mary Crosson, he has not provided the requisite notice to Mary Crosson for bringing a removal action under Education Law §306 and 8 NYCRR §277.1 nor has he alleged any wilful violation by Mary Crosson as required under Education Law §306 and 8 NYCRR §277.1(a). Therefore, the application is denied as to Mary Crosson.
 In its verified answer, respondent board lists 15 “Affirmative Defenses.” Respondent board, however, does not submit evidence supporting several of these defenses with its answer or address such defenses in its memorandum of law. The burden is on respondent to establish its affirmative defenses and under these circumstances, respondent has waived, abandoned or otherwise failed to establish all defenses which are not expressly addressed herein (see Appeal of Kenton, 54 id, Decision No. 16,649; Application of Simmons, 53 id., Decision No. 16,596; see also Woods v. Design Ctr., LLC, 42 AD3d 876, 878 [“[D]efendant did not address in Supreme Court or on appeal the issue.... We therefore conclude ... that defendant conceded” the issue]; New York Commercial Bank v. J. Realty F Rockaway, Ltd., 108 AD3d 756, 757 [“the defendants never raised that affirmative defense in their opposition papers and, thus, by their failure to do so, waived it”]; Polite v. Goord, 49 AD3d 944 [“Although petitioner arguably raised the issue of substantial evidence in the petition ..., he has since abandoned this claim by not raising it in his brief”]).
 The August 24, 2017 letter was also sent to Stith, who is named as a necessary party-respondent.
 Although the cover letter indicates that counsel represents the individual respondents, the answer enclosed therein indicates that it is also being submitted on behalf of respondent board. However, I have already accepted and considered the answer submitted by respondent board.