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Decision No. 17,321

Application of P.P., on behalf of her daughters R.P. and F.P., for the removal of Marissa Mims, Lisa Izant, and John Cucinotta as members of the Board of Education of the Fayetteville-Manlius Central School District, for failure to file accurate expenditure and contribution statements, allowing illegal expenditure of school district funds and misconduct, and for the removal of Kelly Fletcher and Mary Patroulis as members of the Fayetteville-Manlius Teachers Association, for actions relating thereto, and appeal from the actions of the Board of Education of the Fayetteville-Manlius Central School District relating to failure to publicly approve and issue certain reports.

Decision No. 17,321

(February 12, 2018)

Ferrara Fiorenza, PC, attorneys for respondents Mims, Izant and Cucinotta and the Board of Education of the Fayetteville-Manlius Central School District, Heather M. Cole, Esq., of counsel

Robert T. Reilly, Esq., attorney for respondents Fletcher and Patroulis, Jacquelyn Hadam Esq., of counsel

ELIA, Commissioner.--Petitioner seeks the removal of Marissa Mims (“respondent Mims”), Lisa Izant (“respondent Izant”), and John Cucinotta (“respondent Cucinotta”) (collectively “board respondents”) from office as members of the Board of Education of the Fayetteville-Manlius Central School District for allegedly failing to file accurate expenditure and contribution statements, allowing the illegal expenditure of school district funds and engaging in misconduct involving alleged undue influence by the Fayetteville-Manlius Teachers Association (“FMTA”).  She also seeks the removal of Kelly Fletcher (“respondent Fletcher”) and Mary Patroulis (“respondent Patroulis”) (collectively “FMTA respondents”), as president and first vice president, respectively, of the FMTA for their actions relating thereto.  Petitioner further appeals from the actions of the board (“respondent board”) regarding the failure to publicly approve and issue certain reports relating to special education.  The application must be denied and the appeal dismissed.

Petitioner is a resident and taxpayer of the district and brings the instant proceeding on behalf of her two daughters, both of whom are students in the district’s schools.  The petition, which is disjointed and difficult to decipher, contains over 60 paragraphs of allegations of impropriety by the respondent board members and members of the FMTA.  The gravamen of petitioner’s complaint against respondent board members appears to center around the May 2015 election of the three board member respondents, their endorsement by the FMTA, the FMTA’s actions in support of their candidacy, their alleged failure to accurately report contributions by the FMTA, and their alleged inappropriate relationship with the FMTA that affects their decision-making.  Petitioner claims, inter alia, that the board member respondents failed to file accurate expenditure and contribution statements detailing various campaign expenses, as required by law.  Though the petition is unclear, she further appears to allege that the FMTA was impermissibly permitted to use school district resources, namely the school district phone list and a school district “robo service” to conduct robotic telephone calls (“robo calls”) to voters in support of the candidacy of the board respondents.  She further alleges that the board respondents failed to uphold the New York Constitution, violated their oath of office, misused their authority for personal gain or “other non-District purpose” (sic) and engaged in misconduct because post-card mailers were sent out that included a statement that they were endorsed by the FMTA.  

Petitioner also complains that respondent Fletcher impermissibly used a school district email address in November 2015 to send an email to FMTA members to request that they attend board meetings.  Petitioner further alleges that in “April/May 2015”, board respondents Mims and Izant, while sitting board members as well as candidates, met with respondent Fletcher and other FMTA officers during a union meeting without notifying the rest of the board.  She alleges that in so doing, respondents Mims and Izant violated various district policies, including its code of ethics, their oath of office, the code of conduct for board members recommended by the New York State School Boards Association, Education Law §§410 and 3016 relating to conflicts of interest and General Municipal Law §§800-803, 805-a, 806 and 807 relating to conflicts of interest.  Petitioner further claims that after the FMTA endorsed the board member respondents, the FMTA respondents violated district policy by pressuring the board member respondents to take various actions in their capacity as board members.  She describes various instances between November 2015 and April 2016 in which respondent Fletcher sent an email to respondent board members prior to a board meeting and cites those instances as examples of pressure exerted on the board by the FMTA.  She asserts that the votes cast by the board respondents in such instances were tainted by their inappropriate relationship with the FMTA.  For all these reasons, petitioner contends that Mims, Izant, Cucinotta, Fletcher and Patroulis acted in violation of district policy and that such misconduct constitutes an abuse of power, a wilful violation of the law, and neglect of duty within the meaning of §306 of the Education Law, warranting their removal.

In addition, petitioner complains about various actions taken by respondent board with regard to a “Special Services Report,” a report which must be made at least annually to the board by the Committee on Special Education (“CSE”), as required by Education Law §4402(1)(b)(3)(f), on the status of programs, services and facilities provided to students with disabilities under the district plan of service required by Education Law §3602(8) and 8 NYCRR §200.2(c).[1]  Petitioner alleges that respondent board violated Education Law §§4402(1)(b)(3)(e) and (f) and §3602(8) and 8 NYCRR §200.2(c) and District Policy 3300 by failing to have the Special Services Report on the meeting agenda prior to its May 9, 2016 meeting and by failing to have the report presented publicly at such meeting.[2]

Petitioner requests that she be provided with copies of the 2015-2016 Special Services Report, that “[a]ccurate expenditure reports for the 2015 election to the Board of Education ... be completed and submitted to the Commissioner of Education of the State of NY by [board member respondents], including company name that conducted robo calls, receipt of payment to company for robo calls, and/or documentation of entity that conducted robo calls and costs”.  Petitioner also seeks an order for the “recall” of any or all votes taken by the board respondents from July 2015.  Finally, petitioner seeks a stay of certain actions taken by the board at the March 2015 meeting and other subsequent meetings.

All respondents contend, generally, that the petition is untimely, fails to state a claim for which relief may be granted, and that the Commissioner lacks jurisdiction over the FMTA respondents in their capacity as officers of the FMTA.  The board member respondents further contend that the petition lacks the requisite notice for removal under Education Law §306, that petitioner lacks standing, and the Commissioner lacks jurisdiction over allegations of violations of the Open Meeting Law, allegations of violations of the Freedom of Information Law, and allegations of violations of any alleged failure to comply with the requirements of Education Law §§1528 and 1529 relating to the filing of statements of campaign expenditures and contributions.  Respondents further deny that the robo calls were made using district resources and assert that under the terms of its collective bargaining agreement, the FMTA and its officers have a right to use the district email system for communication with FMTA members.  Respondent board members also deny that they took any actions in response to pressure by the FMTA or otherwise had any inappropriate relationship with the FMTA.  Finally, respondents object to petitioner’s reply on the basis that it asserts new facts and makes arguments not raised in the petition.

I must first address petitioner’s reply.  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.

Petitioner’s application for the removal of respondents Fletcher and Petroulis must be denied for lack of jurisdiction.  Education Law §306 authorizes the Commissioner to remove school officers under appropriate circumstances.  For purposes of §306, "school officers" include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or "other school officer[s]."  Although respondents Fletcher and Patroulis are district employees, they are named in this appeal in their capacity as officers of the FMTA, and such officers are not “school officers” as defined in §306, and as school district employees they are not subject to removal under Education Law §306 (Application of Passer, 57 Ed Dept Rep, Decision No. 17,274; Appeal of Gonzalez, 48 id. 415, Decision No. 15,900; Appeal of Ferguson, 32 id. 494, Decision No. 12,897).  Thus, the application to remove respondents Fletcher and Petroulis, which is the only relief sought by petitioner with respect to them, must be denied for lack of jurisdiction because they are not school district officers.

To the extent petitioner contends that respondent board members failed to file accurate campaign expenditure and contribution statements in accordance with Education Law §§1528 and 1529, such claims must be dismissed for lack of jurisdiction.  Pursuant to Education Law §1530, enforcement of the filing requirements set forth in Article 32 of the Education Law is by means of a proceeding instituted in the Supreme Court of the State of New York, and is therefore outside the jurisdiction of the Commissioner of Education (Education Law §1530; Appeal of D’Angelo, 55 Ed Dept Rep, Decision No. 16,896; Appeal of the Board of Education of the Hempstead Union Free School District, 55 id., Decision No. 16,878; Appeal of Reese, et al., 49 id. 328, Decision No. 16,044; Appeal of Johnson, et al., 45 id. 320, Decision No. 15,334; Appeal of Donnelly, 33 id. 362, Decision No. 13,079).

To the extent petitioner is asserting that respondent board members have violated the Open Meetings Law relating to matters such as meeting agendas and the conduct of executive sessions, such claims must also 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 this appeal.

Many of the claims raised by petitioner must also 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).  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).  Although petitioner does not seek an order setting aside the results of the May 2015 election, many of her claims relate to actions by the FMTA made in support of the candidacy of respondent board members for election in May 2015, the FMTA’s alleged use of school district resources for robo calls prior to such election, and failure by the board respondents to file accurate campaign expenditure statements and make all filings required by Education Law §1529 with respect to the May 2015 election.  Another claim relates to the alleged illegal use of the district email system by respondent Fletcher in November 2015.  Petitioner also alleges that on several occasions between November 2015 and April 2016, the board respondents were improperly pressured by the FMTA to take various actions.  Finally, petitioner challenges respondent board’s actions relating to its acceptance of the Special Services Report on May 9, 2016.

This proceeding was commenced by service of the petition on June 6, 2016.  Therefore all of petitioner’s claims relating to the filing of expenditure reports for the 2015 election, the alleged illegal use of district resources for robo calls in conjunction with the 2015 election, the allegedly illegal sending of a postcard mailer, the allegedly illegal use of district emails by respondent Fletcher in November 2015 and the instances involving alleged improper influence by the FMTA between November 2015 and April 2016 relate to actions taken by respondents more than 30 days prior to commencement of the appeal and are untimely.

Petitioner argues, however, that the actions of such board members, following their election to the board, constitute a continuing wrong and are therefore subject to complaint at any time.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).  To the extent petitioner is challenging various actions of respondents relating to the May 2015 election, including the filing of campaign expenditure reports, I reject petitioner’s argument that the continuing wrong doctrine applies.  Such actions were discrete actions that are not ongoing in nature and do not have effects that are intrinsically unlawful.  Therefore, as such actions took place more than a year prior to commencement of this appeal and petitioner has provided no excuse for the delay, petitioner’s claims relating to the May 2015 election must be dismissed as untimely.

Petitioner also alleges that respondent board members had an inappropriate relationship with the FMTA that compromised their ability to make decisions for the benefit of the students and taxpayers of the district after the May 2015 election.  However, while petitioner has cited a series of discrete incidents between November 2015 and April 2016, in which the FMTA is alleged to have exerted undue influence on the board respondents and hence on respondent board, petitioner has not alleged that any of such actions involved an impermissible conflict of interest in violation of Article 18 of the General Municipal Law or any other law or the district’s code of ethics.  Thus, once again, petitioner has not proven that these instances involved an ongoing wrong that has results that are intrinsically unlawful.  Absent such proof, I cannot find that the continuing wrong doctrine applies.  Since petitioner has not offered any excuse for the delay, I find such claims must also be dismissed as untimely.

However, on this record, I find petitioner’s claim that respondent board is impermissibly allowing the FMTA to use its email system, if proven, to be in the nature of a continuing wrong.  In this regard, the petition cites to the Commissioner’s decision in Appeal of Himmelberg, Jr. and Little, 46 Ed Dept Rep 228, Decision No. 15,490, in which the Commissioner ruled that a district that permits the use of its email system by a union to send an email to its members endorsing the candidacy of candidates for the board of education violates the prohibition against use of public funds to promote a partisan political position as articulated by the Court of Appeals in Phillips v. Maurer, 67 NY2d 672.  While petitioner complains about the FMTA’s use of the email system in November 2015, if petitioner were correct that the FMTA’s use of the district email system violates Article VIII, §1 of the New York Constitution, any such continued use would be a continuing wrong that would be intrinsically unlawful.  Thus, I decline to dismiss as untimely petitioner’s claim that respondent board impermissibly allowed the FMTA to use its email system.

Moreover, petitioner’s appeal from the actions taken by respondent board on May 9, 2016 with respect to the Special Services Report was commenced within 30 days of respondent’s actions and therefore is timely.

The application for removal of respondent board members must be denied in its entirety for failure to provide the notice required by 8 NYCRR §277.1(b).  The notice of petition accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice of petition prescribed under 8 NYCRR §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 regulation is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Application of Carrion, 50 id. Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  It is the notice of petition that alerts a party to the fact 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 (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253; Application of Knapp, 41 id. 41, Decision No. 14,608).

Since the applications for removal have been dismissed on procedural grounds, I need not address the merits of petitioner’s claim that the FMTA is illegally using the district email system because the only relief sought by petitioner with regard to the FMTA’s use of the district email system is removal of the various respondents.

Petitioner’s only remaining claim relates to the actions taken by respondent board on May 9, 2016 with respect to the Special Services Report.  Respondent board argues that petitioner lacks standing to challenge respondent board’s failure to publicly review the Special Services Report because she is not the parent of a student with a disability and that petitioner’s assertion that she has standing based on her need to understand the “budget, staffing, number of classified students, supports for students in general education programs, supports for students in special education classrooms and resources, all of which impact the school day and access to curriculum,” is too speculative to confer standing.  While I agree with respondent that petitioner’s argument for standing is tenuous and she may not have standing to challenge the substance of the Special Services Report, petitioner’s claim in this appeal is that respondent board failed to publicly review the Special Services Report.  Assuming, for the sake of argument, that respondent board had an obligation to review and discuss the report in public session, such a requirement of public disclosure would be for the benefit of taxpayers in the district, not just parents of special education students.  Since petitioner is a taxpayer, I decline to dismiss the appeal relating to the Special Services Report for lack of standing.

The appeal from respondent board’s failure to publicly discuss the Special Services Report must, however, be dismissed for failure to state a claim upon which relief may be granted.  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).  In this case, respondent approved the Special Services Report at its May 9, 2016 meeting as a consent agenda item without publicly discussing it.  However, petitioner cites no authority for the proposition that respondent was required to review and discuss the Special Services Report in a public session.  Education Law §4402(1)(b)(3)(f) requires that the CSE submit the report to the board of education at least annually and that such reports be kept on file for inspection by the Commissioner.  The statute is silent about any obligation on the part of the board of education to discuss the report in a public meeting, though that would clearly be best practice.  District Policy 3300, cited by petitioner, relates to programs for students with disabilities and does not impose such a requirement and neither does 8 NYCRR §200.2(c).  Petitioner has failed to prove that respondent violated any law or district policy by failing to publicly discuss the Special Services Report.

Finally, I note that petitioner does not allege that she has made a request under the Freedom of Information Law (“FOIL”) for a copy of the Special Services Report, and in fact, respondents have submitted affidavits attesting that petitioner has not made such a FOIL request.  Petitioner has not proven that she has a legal right to receive a copy of the Special Services Report as relief in this appeal.  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations 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 Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Thus, petitioner’s recourse, if she wishes to receive a copy of the Special Services Report, is to submit a FOIL request to respondent board.

However, I reject respondent board’s argument that there is no requirement that the Special Services Report be made public.  The report required by Education Law §4402(1)(b)(3)(f) describes the special education programs and services provided to students with disabilities and thus is part of the district plan of service required by Education Law §3602(8)(b).  Paragraphs (1) and (4) of subdivision (c) of section 200.2 of the Regulations of the Commissioner (8 NYCRR §200.2[c][1] and [4]) each require that the district plan be made available for public inspection.  In this regard, paragraph (4) of subdivision (c) of §200.2 specifically provides as follows: “The district plan, with personally identifiable student information deleted, shall be filed and available for public inspection and review by the Commissioner.”  Accordingly, I admonish respondent board that in the future it must make its report pursuant to Education Law §4402(1)(b)(3)(f) available to the public for inspection, as required by 8 NYCRR §200.2(c)(1) and (4), with personally identifiable information redacted.

In light of this disposition, I need not address the remaining contentions raised in this application and appeal.

THE APPLICATION IS DENIED AND THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Petitioner also cites to Education Law §4402(1)(b)(3)(e), which requires that CSEs conduct periodic evaluations of the adequacy of programs, services and facilities for students with disabilities. However, it appears from the record that the Special Services Report at issue in this appeal is the annual report required by §4402(1)(b)(3)(f).

 

[2] As discussed below, petitioner commenced this proceeding on June 6, 2016 and her request for interim relief was denied on June 23, 2016.