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Decision No. 17,280

Application of DORIS DODSON for the removal of Fred Philips, Daniel Devine, Edna Carbajal, and William G. Softy as members of the Board of Education of the Central Islip Union Free School District.

Decision No. 17,280

(December 12, 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 (“respondent Philips”), Daniel Devine (“respondent Devine”), Edna Carbajal (“respondent Carbajal”), and William G. Softy (“respondent Softy”) (collectively, “respondents”) as members of the Board of Education of the Central Islip Union Free School District (“board”).  The application must be denied.

At the time of the events giving rise to this application, petitioner was a board member, respondent Philips was board president, and respondents Devine, Carbajal, and Softy were board members. 

The primary contention alleged by petitioner involves the use of an Energy Conservation Day (“ECD”) during the 2012-2013 school year.  The record reflects that, on an ECD, the board affords a paid day off to employees of a certain bargaining unit (the “union”) and does not use any energy to heat the district’s facilities during the day.  By memorandum to the board dated December 14, 2012, the district’s superintendent sought board approval to hold an ECD for the union on December 28, 2012.  The superintendent stated that he would bring the motion for approval at the January 2013 board meeting, and that, unless any board member objected, he would allow the ECD to proceed.  The board adopted a resolution at the January 14, 2013 meeting, which retroactively approved the ECD.  This application ensued.

Petitioner affirmatively alleges that her application is timely as it was commenced within 30 days of the most recent occurrence concerning the ECD, which she claims was on December 9, 2013.[1], [2] 

On the merits, petitioner seeks respondents’ removal from office, arguing that their decision to approve the ECD was fiscally irresponsible.  Petitioner asserts that respondents “continue to display behavior that neglects their duties and shows willful disobedience to a law or a decision, order, or regulation of the Commissioner.” Petitioner further alleges that, at the February 13, 2013 board meeting, the district’s business manager presented a cost/benefit analysis regarding the ECD which showed that the ECD was not a cost saving mechanism.  Petitioner asserts that respondents ignored their fiduciary responsibility to analyze and assess the economic feasibility of the continued use of ECDs.  Petitioner further contends that respondents stated at board meetings that they approved the ECD only to appease the union and, thus, did not act in the best interests of the district.

Petitioner also challenges certain actions taken by respondents regarding the evaluation of the superintendent from November 2012 through July 2013, including an allegation that petitioner was denied meaningful participation during this process.  Petitioner also asserts that respondent Philips improperly ordered board member Monique McCray to cease recording a board meeting on December 4, 2013.  Petitioner further alleges that respondents violated the Open Meetings Law during board meetings held on December 4 and December 9, 2013.

Respondents assert that the application must be dismissed as untimely.  Respondents further contend that the Commissioner lacks jurisdiction over petitioner’s claims regarding the Open Meetings Law.  Respondents further argue that petitioner has failed to demonstrate a clear legal right to the relief requested, and that petitioner has not identified any “wilful, intentional violation of law or Commissioner’s order, or neglect of duty” to support their removal pursuant to Education Law §306.

I must first address several procedural matters.  Petitioner submitted a reply in this matter.  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.

In response to newly-raised allegations in the reply, respondents submitted a sur-reply “affirmation” for consideration.  As noted above, I have not considered those portions of petitioner’s reply which are not responsive to new material or affirmative defenses in the answer.  Therefore, I need not consider the sur-reply that respondents submitted for my consideration (see Appeal of H.H., 57 Ed Dept Rep, Decision No. 17,141).

Turning to the issue of timeliness, 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).  A review of the record indicates that petitioner first became aware of the proposed ECD when the superintendent issued a December 14, 2012 memorandum to the board seeking board approval for the December 28, 2012 ECD.  The record further indicates that the board formally approved the ECD on January 14, 2013.  Petitioner’s application was served on respondents on various dates in January 2014,[3] all of which occurred over 11 months after the board resolution approving the ECD.  Thus, to the extent petitioner seeks respondents’ removal based on approval of the ECD, the application must be denied as untimely.  To the extent petitioner seeks respondents’ removal based on alleged deficiencies regarding the evaluation of the superintendent, the most recent allegation of wrongdoing in the application occurred in July 2013, approximately six months prior to the date on which the instant appeal was commenced.[4]  Therefore, this claim must also be dismissed as untimely. 

Further, petitioner had actual notice of the ECD and the fact that the board did not conduct an evaluation of the superintendent in December 2012, and of allegedly improper conduct concerning the superintendent’s evaluation at a July 2013 board meeting.  Therefore, petitioner may not avail herself of the “good faith discovery” exception to the 30-day time limitation (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).

I decline to excuse petitioner’s delay in filing the instant application as petitioner has not pled or established good cause for such delay in her petition (8 NYCRR §275.16).  While petitioner refers to prior personal illness in her petition, such allegations do not, ipso facto, demonstrate good cause sufficient to excuse a late petition (Application of Lyons-Birsner and Birsner, 57 Ed Dept Rep, Decision No. 17,160; Appeal of Jarosz, 34 id. 600, Decision No. 13,423).  Additionally, though not set forth in her petition as required by 8 NYCRR §275.16, petitioner states in a reply that she was a “new” board member and, thus, unfamiliar with the district’s practices concerning ECDs.  Even assuming that petitioner had set forth this explanation in her petition, I would not find it persuasive because petitioner had actual knowledge of the ECD more than eleven months prior to the date she served the instant petition.

Petitioner’s claims regarding alleged violations of the Open Meetings Law at board meetings held on December 4 and 9, 2013 must be dismissed for lack of jurisdiction.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in an application pursuant to Education Law §306 (Application of Gates, et al., 57 Ed Dept Rep, Decision No. 17,164; Application of the Bd. of Educ. of the City School Dist. of the City of Elmira, 49 id. 363, Decision No. 16,051).[5]

Even if the application were not denied for the reasons described above, it would be denied 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).  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, petitioner has not pled or proven that respondents committed any wilful violations of, or neglect of duty under, the Education Law or any other act pertaining to common schools.  Although it is clear that petitioner disagrees with the board’s decision to designate an ECD in 2012, there is no evidence in the record that any respondent engaged in a violation of law or neglect of duty or harbored the requisite wrongful purpose in approving the ECD.  Similarly, while respondents admit that the superintendent was not evaluated in 2011-2012, petitioner does not allege, and the record does not show, that respondents acted with a wrongful purpose in failing to conduct the superintendent’s 2011-2012 evaluation.  Additionally, although petitioner’s complaints in this regard are not entirely clear, while the record indicates that the superintendent’s 2012-2013 evaluation was late, petitioner has not established that respondents wilfully caused such delay or otherwise acted with a wrongful purpose with respect to the superintendent’s 2012-2013 evaluation.  For example, respondent Philips avers that when the board became aware in December 2012 that it had “mistakenly” not completed an evaluation of the superintendent for 2011-2012, it sought counsel’s advice.  Thereafter, with board consensus, respondent Philips entered into a letter agreement with the superintendent, whereby the superintendent waived his right to evaluated and the board acknowledged that his performance was between “good” and “commendable.” In their verified answer, respondents further assert that the process for the superintendent’s 2012-2013 evaluation began in spring 2013.  Thus, petitioner has not met her burden to show that respondents entertained “a purpose or intent to disregard a lawful duty or to violate a legal requirement” in approving the ECD or with respect to the evaluation of the superintendent (Application of Ciffone, et al., 35 Ed Dept Rep 243, Decision No. 13,529; Application of Kozak, 34 id. 501, Decision No. 13,396; Matter of Felicio, et al., 19 id. 414, Decision No. 10,190).  Nevertheless, I remind the board of its obligation to conduct an annual evaluation of its superintendent in accordance with the Commissioner’s regulations and board policy (see 8 NYCRR §100.2[o][5][vi]).

One administrative matter remains.  Respondents have requested certificates of good faith pursuant to Education Law §3811(1).  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 are each entitled to receive the requested certificate.

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

THE APPLICATION IS DENIED.

END OF FILE

 

[1] Petitioner also generally requests that I grant an extension to the 30-day timelines “where necessary” and for “good cause.”

 

[2] In her application, petitioner refers to an action that took place in December 2013; however, petitioner’s reply, discussed below, references an occurrence that took place in December 2014.  The record reflects a date of December 2012, as discussed elsewhere in this decision.

 

[3] Petitioner served respondents Devine and Softy on January 9, respondent Carbajal on January 13, and respondent Philips on January 18, 2013.

 

[4] Petitioner references “a second meeting ... held in July, 2013” but does not otherwise identify the date of this meeting.

 

[5] It appears that petitioner objects to respondent Philips’ actions regarding the recording of the December 4, 2012 board meeting solely on the basis that such actions violated the Open Meetings Law.  Nevertheless, to the extent the petition could be construed as a general challenge to the validity of these actions, it would be dismissed as untimely because respondent Philips was served on January 18, 2013, more than 30 days after this board meeting.