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Decision No. 17,422

Appeal of JESSICA LOVINSKY and PHEE SIMPSON from action of the Board of Education of the City School District of the City of Poughkeepsie regarding disclosure of confidential information and application for the removal of Doreen Clifford and Felicia Watson as members of the Board of Education.

Decision No. 17,422

(June 27, 2018)

School Administrators Association of New York State, attorneys for petitioners, Wendy S. DeForge, Esq., of counsel

Bond Schoeneck & King, PLLC, attorneys for respondent, Howard M. Miller, Esq., of counsel

ELIA, Commmissioner.--Petitioners challenge certain actions by the Board of Education of the City School District of the City of Poughkeepsie (“respondent board”) and board members Doreen Clifford (“respondent Clifford”) and Felicia Watson (“respondent Watson”) (collectively, “respondents”).  Petitioners also seek the removal of respondents Clifford and Watson as members of respondent board.  The appeal must be dismissed and the application must be denied.

Petitioner Lovinsky served as an assistant principal for the City School District of the City of Poughkeepsie (“district”) from February 2016 to January 2018.  Petitioner Simpson is the former executive principal at Poughkeepsie High School.

This appeal and application arise from a board-initiated investigation into alleged impropriety regarding graduation statistics.  By way of background, petitioners allege that they shared responsibility to ensure that the senior class of 2017 met the requirements for graduation.  Some of these students, according to the record, received accommodations pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504”).  Petitioners allege that, “[f]ollowing the June 2017 Regents results,” petitioner Lovinsky “checked on the status of scheduling additional 504 committee meetings for students at risk of not graduating ....”  Petitioner Lovinsky alleges that these meetings had not been scheduled and, thus, she contacted respondent’s superintendent, who immediately ordered the district’s director of instructional support services to schedule the meetings.  Petitioners allege that, due to summer vacation and the haste in which the meetings were scheduled, the Section 504 committees consisted of teachers, the school psychologist and the school social worker from the elementary level.  Petitioners also state that “the only participants with knowledge [of the students] were the assistant principal and the parents of the student.”

According to the record, on July 7, 2017, the board hired attorney Todd Aldinger (“attorney Aldinger”) to investigate suspected election fraud in the 2016 and 2017 elections.  The scope of this investigation eventually expanded into an examination of respondent’s graduation rates for the 2016-2017 school year.  Petitioners allege that this expansion was politically motivated, and that the board sought to discredit the superintendent with whom it shared an adversarial relationship.

On November 15, 2017, attorney Aldinger submitted a report to the board documenting his findings.   Petitioners allege that this document was a privileged attorney-client work product, and that it was only shared with the board during executive session at a board meeting on November 15, 2017.  This report alleged that petitioners had acted inappropriately in connection with the Section 504 meetings held in the summer of 2017.

On November 16, 2017, the Poughkeepsie Journal published an article which discussed attorney Aldinger’s report and the findings therein.  Petitioners surmise that respondents leaked this information because, they allege, it was only discussed in executive session.

In a “Second Preliminary Report” by attorney Aldinger dated December 15, 2017, attorney Aldinger alleged that numerous students had been offered Section 504 accommodations shortly before, and sometimes after, Regents examinations so that students could pass with a lower score and bolster the district’s graduation rate.  This report alleged wrongdoing by petitioners as well as the superintendent.

Petitioners allege that “the [b]oard and[/]or its members” disclosed attorney Aldinger’s second preliminary report to the Poughkeepsie Journal, and that the result of such disclosure was an article dated December 27, 2017, in which the reporter indicated that she had been provided with a copy of the report.  The article also stated that the investigation remained ongoing which, petitioners allege, was confidential information discussed in executive session.

Petitioners allege that, in January 2018, petitioner Lovinsky submitted her resignation.  Thereafter, attorney Aldinger contacted her and requested to interview her in connection with his investigation.  Petitioner Lovinsky declined.  In response, attorney Aldinger threatened to make a referral to the State Education Department pursuant to Part 83 of the Commissioner’s regulations concerning petitioner Lovinsky’s moral character.

On or about January 18, 2018, the board voted to initiate charges against petitioner Simpson pursuant to Education Law §3020-a.

On January 22, 2018, a reporter with the Poughkeepsie Journal indicated in a social media post that a special meeting of the board would take place that evening, and that the purposes of the meeting were: to bring disciplinary charges against a district employee and to place this employee on leave; to appoint a new acting principal of the high school; and to accept the resignation of an assistant high school principal.  In response to this posting, a commenter wrote: “[f]ake [a]ttendance [r]ecords to help kids graduate?”  Respondent Clifford responded by writing: “No.  Didn’t meet attendance requirements and still graduated, among other issues.”[1]  Petitioners allege that respondent Clifford’s response was improper and constituted an impermissible disclosure of confidential information.

Later that day on January 22, 2018, the board convened a special meeting whereby it: (1) charged an employee pursuant to Education Law §3020-a, who was identified by an employment number; (2) promoted Dr. Elizabeth TenDyke to a new position; (3) appointed an acting executive principal for Poughkeepsie High School in the event of the absence of the Executive Principal; and (4) accepted petitioner Lovinsky’s resignation.  Petitioners also allege that, at this meeting, respondents improperly provided a copy of a press release to the Poughkeepsie Journal which identified petitioner Simpson by name.

Petitioners allege that, on February 12, 2018, “the [b]oard and [d]istrict released unredacted notes and findings of conclusion and questions of fact” regarding attorney Aldinger’s investigation.  Petitioners further allege that this and other information formed the basis of a February 14, 2018 article in the Poughkeepsie Journal.  This appeal and application ensued.  Petitioners’ request for interim relief was denied on March 6, 2018.

Petitioners contend that attorney Aldinger’s investigation was and is a subterfuge, and that respondents and the board initiated the investigation to impugn petitioners, the superintendent and others.  For example, petitioners assert that attorney Aldinger’s investigation was incomplete because he did not interview petitioner Lovinsky, the parents who participated the Section 504 meetings, or the social worker/psychologist who participated in the Section 504 meetings.  Petitioners also contest the board’s allegations regarding the improper provision of Section 504 accommodation plans.

Petitioners also allege five disclosures which, they argue, constituted disclosures of confidential information in violation of General Municipal Law §805-a as well as Education Law §3020-a(2)(a), 8 NYCRR §82-3.3 and Board Policy 2330.  The five alleged disclosures are as follows: (1) on November 16, 2017, the Poughkeepsie Journal published an article which revealed confidential information from executive session which had been disclosed to the newspaper by respondents; (2) on December 27, 2017, the Poughkeepsie Journal published an article containing confidential information which had been disclosed to the newspaper by respondents; (3) on January 22, 2018, respondent Clifford disclosed confidential information by responding to a social media post in a manner which revealed respondent Simpson’s identity; (4)  on January 22, 2018, respondent board issued a press release which disclosed confidential information by implicitly identifying petitioner Simpson; and (5) on February 12, 2018, respondents disclosed confidential, unredacted notes which identify petitioner Simpson by name and contain untrue accusations against her. 

For relief, petitioners seek an order removing respondents Clifford and Watson from office pursuant to Education Law §306 and board policy; the “[i]mmediate dismissal” of charges pursuant to Education Law §3020-a against petitioner Simpson; and the “[i]mmediate reinstatement of [petitioner] Simpson” as executive principal of Poughkeepsie High School.

Respondents contend that the appeal must be dismissed and the application must be denied as untimely, for failure to join necessary parties, and as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  Respondents further argue that the appeal must be dismissed and the application must be denied as against respondent Clifford for lack of personal service.  Respondents additionally assert that petitioner Lovinsky lacks standing to bring the instant appeal insofar as she lacks standing to seek relief regarding petitioner Simpson’s employment.

First, I must address two preliminary matters.  Petitioners object to respondents’ inclusion of two exhibits in their memorandum of law which, they contend, exceed the permissible scope of a memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Here, the exhibits to respondents’ memorandum of law respond to newly-raised contentions in petitioners’ reply regarding the timely service of the answer, which I addressed below.  Although new evidence and exhibits are not ordinarily allowed in a memorandum of law, the two exhibits at issue are two letters from respondents’ attorney to my Office of Counsel which, among other things, confirm that extensions of time to submit an answer had been granted.  Respondents did not otherwise have an opportunity to respond to petitioners’ contentions regarding the timeliness of their answer until submitting their memorandum of law.  Additionally, the two letters were already on file with my Office of Counsel and, as such, may be considered in determining this appeal (8 NYCRR §276.6).  In any event, I have the discretion to accept additional evidence pursuant to 8 NYCRR §276.5 and, under these circumstances, I find that these exhibits to respondents’ memorandum of law are properly considered as part of the record in this appeal.

In any case, petitioners originally objected to respondents’ answer as untimely, but now appear to concede that the answer was served within the timeframe prescribed by an extension granted by my Office of Counsel.  Specifically, although counsel for petitioners states that she “never received” an email from counsel for respondents concerning their extension request, she states that petitioners “would not have raised the timeliness argument” in their papers had she known of this request.  It appears from the record that respondents were granted an extension of time to answer until March 22, 2018 and that the answer was served on that date.  Thus, on this record I conclude, as the parties apparently agree, that respondents’ answer was timely.

Next, I must address respondents’ defenses and petitioners’ objections thereto.  First, the appeal must be dismissed as to respondent Clifford for lack of personal service.  Section 275.8(a) of the Commissioner’s regulations, which is made applicable to removal proceedings by Commissioner’s regulation §277.1, requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Petitioners’ affidavit of service indicates that a process server attempted to personally serve the petition on respondent Clifford at four unspecified times on February 22, 2018.  When these efforts proved unsuccessful, the process server asserts that she “affixed the document to the front door” on February 22, 2018.  In an affidavit, respondent Clifford avers that she was not personally served with a copy of the petition and that, instead, a copy “was left in a brown bag on my front door at 9:15 at night on February 22, 2018.”[2]

 Although §275.8(a) of the Commissioner’s regulations permits service of a petition on a person of suitable age and discretion at the respondent’s residence where the respondent cannot be found, there is no authority for other forms of alternative service, absent express authorization from the Commissioner (Appeal of Boni, 41 Ed Dept Rep 214, Decision No. 14,666; judgment granted dismissing petition to review sub nom. Boni, et al. v. Mills, et al., Sup. Ct., Albany Co., Special Term; Bradley, J.; January 7, 2003; Application of Balen, 40 id. 250, Decision No. 14,474; Appeal of Ponella, 38 id. 610, Decision No. 14,103).  Since the Commissioner did not authorize alternative service, and no personal service was made upon respondent Clifford, the appeal and application must be dismissed as to her for improper service, and therefore she has not been properly joined as a party to this appeal (Appeal of Boni, 41 Ed Dept Rep 214, Decision No. 14,666; judgment granted dismissing petition to review sub nom. Boni, et al. v. Mills, et al., Sup. Ct., Albany Co., Special Term; Bradley, J.; January 7, 2003; Application of Grinnell, 37 id. 504, Decision No. 13,914).

Although petitioners contend that they requested permission to utilize an alternative form of service in a letter dated February 27, 2018, I disagree with petitioners’ characterization of this letter.  After describing the efforts of the process server to serve respondent Clifford, petitioners stated that affixing a copy of the petition to respondent Clifford’s door and mailing her a copy of the petition “is provided for in Section 308 of the CPLR.”  Petitioners further stated that:

If the Commissioner still requires a different form of service upon Ms. Clifford, despite her attempts to avoid service, please allow this correspondence to request permission and guidance in that regard.

I do not find that this constitutes a request for permission from the Commissioner to utilize alternative service.  The regulations contemplate that parties who have been unable to effectuate personal service may request permission to utilize an alternative method of service as directed by the Commissioner (8 NYCRR §275.8[a]).  Instead, petitioners unilaterally elected to utilize alternative service, without requesting prior permission, and then requested that I approve this arrangement in a letter dated five days after they utilized alternative service.  In this letter, petitioners merely requested permission to utilize alternative service if I “require[d]” it and further requested that I provide “guidance” to petitioners regarding their legal obligations in this respect.  Petitioners are represented by counsel, and it is well-settled in prior Commissioner’s decisions that alternative service is only authorized when directed by the Commissioner.  The appeal process authorized by Education Law §310 is adversarial in nature and, as such, it would not be appropriate for my Office of Counsel to ensure that a party complies with the practice regulations or renders advice in connection therewith.

Respondents next assert that the petition must be dismissed for failure to join the hearing officer appointed to adjudicate charges brought against petitioner Simpson pursuant to Education Law §3020-a as well as the State Education Department (“SED”).  This argument is without merit.  While a finding that a school district improperly initiated a §3020-a charge would affect whether or not a hearing officer must adjudicate the charges and SED’s oversight arising therefrom, neither the hearing officer nor SED has a legal interest as to whether the hearing proceeds or not.  Additionally, with specific respect to the hearing officer, even if I were to deem him or her a necessary party, his or her appearance or participation in this appeal could affect the perception that he or she is a neutral factfinder in the underlying §3020-a hearing.  Therefore, I do not find that the hearing officer or SED are necessary parties and, consequently, will not dismiss the petition because petitioners did not join them.

Respondents also argue that the appeal must be dismissed in part as petitioner Lovinsky lacks standing to challenge respondents’ actions relating to the employment of petitioner Simpson.  Petitioners allege that petitioner Lovinsky is a district resident.  A district resident generally lacks standing to challenge the personnel actions of a board of education (Appeal of Destino, 52 Ed Dept Rep, Decision No. 16,461; Appeal of Lander, et al., 42 id. 201, Decision No. 14,822; Appeal of Gaul, 40 id. 105, Decision No. 14,432).  Petitioner Lovinsky has not alleged that respondents’ various personnel actions against petitioner Simpson, such as bringing a proceeding pursuant to Education Law §3020-a against her, involve an illegal expenditure of district funds or otherwise cause personal injury or damage to her rights as a district resident.  Thus, I agree with respondents’ objection with respect to petitioner Lovinky’s standing to challenge petitioner Simpson’s employment.  Nevertheless, petitioner Simpson is a petitioner in this proceeding and has standing to challenge actions affecting her own employment.  Although I agree that petitioner Lovinksy lacks standing to seek dismissal of §3020-a charges against petitioner Simpson or seek her reinstatement, since petitioner Simpson has the requisite standing, this does not provide a basis for dismissal of petitioners’ claims relating to petitioner Simpson’s employment.[3]

To the extent petitioners seek an order dismissing the §3020-a charges brought against petitioner Simpson, such claim must be dismissed for lack of subject matter jurisdiction.  Education Law §3020-a was amended by Chapter 691 of the Laws of 1994 to divest the Commissioner of jurisdiction to review determinations of hearing officers, both final and non-final (Appeal of DeMarco, 48 Ed Dept Rep 252, Decision No. 15,850; Appeal of T.W., 47 id. 400, Decision No. 15,735; Appeal of Fauvell, 47 id. 350, Decision No. 15,720).  Petitioners argue that the Commissioner has exclusive jurisdiction over administration of §3020-a proceedings because prior decisions of the Commissioner which found a lack of subject matter jurisdiction have stated that a request to dismiss the charges would require the Commissioner’s review of the merits, and petitioners here are not seeking review of the merits.

However, each of the decisions cited above have pointed out that Education Law §3020-a(3)(c)(iii) and (iv) give the hearing officer authority to hear and decide all motions, including motions to dismiss disciplinary charges.  Moreover, despite the language in past decisions suggesting that taking jurisdiction would impermissibly require the Commissioner to review the merits of such decisions, the Commissioner has repeatedly declined to exercise jurisdiction over claims that make procedural objections to the charges, challenge the sufficiency of the charges, or make claims of constitutional, statutory or regulatory violations that do not involve review of the merits of the charges themselves (see Appeal of DeMarco, 48 Ed Dept Rep 252, Decision No. 15,850 [claims that alternative disciplinary procedures violate due process, the Human Rights Law and the federal Family and Medical Leave Act]; Appeal of T.W., 47 id. 400, Decision No. 15,735 [claim that charges did not include a record of votes by the board as required by §3020-a and the Commissioner’s regulations]; Appeal of Fauvell, 47 id. 350, Decision No. 15,720 [claim that charges were not filed between the actual opening and closing of the school year]; Appeal of Frajer, 41 id. 403, Decision No. 14,725 [claim that acting superintendent acted beyond her legal authority in denying petitioner a hearing based on his failure to make a timely demand for a hearing, and imposing a penalty of termination after an inquest]; Application of McCall, 34 id. 484, Decision No. 13,390 [challenge to timeliness of charges]).

In this appeal, petitioners are seeking an order dismissing the §3020-a charges against petitioner Simpson based on respondents’ alleged violations of petitioner Simpson’s right to keep the charges and the disciplinary hearing private as she had not demanded a public hearing in accordance with 8 NYCRR §82-1.9.  I find that petitioners’ request for an order directing dismissal of the §3020-a charges is, by statute, properly the subject of a motion to dismiss to be determined by the hearing officer.  Education Law §3020-a(3)(c)(iii) and (iv) very clearly vest the hearing officer with authority to entertain motions to dismiss the charges, and it would be inconsistent with this statutory scheme, which provides limited judicial review of hearing officer determinations and divests the Commissioner of appellate jurisdiction of a §3020-a decision in an appeal under Education Law §310, for the Commissioner to intrude upon a hearing officer’s authority and entertain a request to dismiss the charges in a pending §3020-a hearing.  To the extent that the language of past Commissioner’s decisions suggests that the Commissioner lacks subject matter jurisdiction only where review of the merits of the charges is involved, such decisions are hereby overruled.   Therefore, petitioners’ request for an order dismissing the §3020-a charges against petitioner Simpson and ordering her reinstatement must be dismissed for lack of subject matter jurisdiction.                                         

Moreover, the bulk of the allegations in the petition must 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of P.P., 57 Ed Dept Rep, Decision No. 17,321; Application of Kelty, 48 id. 476, Decision No. 15,921).  The instant appeal was served on respondent Clifford and respondent board on February 22, 2018.  All but one of the acts or omissions alleged in the petition occurred more than 30 days before this date.  Petitioners have not, as required by 8 NYCRR §275.16, set forth good cause for this delay in their petition.  Therefore, all allegations concerning actions allegedly committed more than 30 days before February 22, 2018 are hereby dismissed as untimely.

In their reply, petitioners attempt to set forth good cause for their delay in serving the instant appeal and application by responding to respondents’ affirmative defense of untimeliness.  Even if petitioners had presented this explanation in the petition, as required by 8 NYCRR §275.16, I would not find that it constituted good cause for the delay.  Petitioners assert that they initially served a version of the petition on February 15, 2018 and attempted to “amend” this petition on February 20, 2018 “to correct a procedural defect” and to add additional contentions concerning acts which post-dated the petition.  Petitioners argue that because the regulations of the Commissioner are “silent” regarding the permissibility of amended pleadings, petitioners justifiably “default[ed]” to the procedure under the Civil Practice Law and Rules (“CPLR”).  In this regard, petitioners contend that such actions are “customary.”

I disagree with petitioners’ interpretation of the practice rules and regulations governing appeals and other proceedings before the Commissioner (see 8 NYCRR Parts 275, 276, and 277).  These regulations prescribe, in often exacting detail, what pleadings and papers are permitted or required in proceedings brought pursuant to Education Law §§306 or 310 and there is no provision in Commissioner’s regulations authorizing an amended petition (see Appeal of T.A. and J.A., 54 Ed Dept Rep, Decision No. 16,781; Appeal of Ransom, et al., 54 id., Decision No. 16,647).  Moreover, even assuming, arguendo, that amendment of pleadings was permitted in such proceedings, petitioners’ reasons for seeking to amend the petition here are not compelling.  Correction of a “procedural defect” does not constitute good cause for delay or for seeking to amend a petition, nor does seeking to add new factual assertions which occurred after the instant petition was served, as petitioners could have initiated a new appeal or application which complained of such events, or sought to submit such information under §276.5 of the Commissioner’s regulations, pursuant to which the Commissioner may permit the service and filing of affidavits, exhibits and other supporting documents upon good cause shown.  Finally, whether amendment of pleadings is “customary” in other administrative contexts is irrelevant for purposes of the instant proceeding.

I acknowledge that deputy counsel for the organization which represents petitioners in this proceeding requested an “extension” of the 30-day time limitation in an affidavit dated March 2, 2018.  However, there is no provision in the Commissioner’s regulations that would authorize an extension of time to appeal after the 30-day time limitation had passed.  Petitioners’ recourse, once the 30-day time limitation had passed, would be to set forth good cause for the delay in the petition, which petitioners here have not done (see 8 NYCRR §275.16).

Petitioners further argue that the untimely contentions in the appeal and application constitute a continuing wrong and, as such, are timely.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action that results in a continuous violation of the law, 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 discrete action, inaction or decision and the resulting effects are continuing but 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.]).

Here, petitioners have neither alleged nor proven a continuing wrong.  Petitioners allege that respondents have committed multiple, discrete disclosures of confidential information, not an ongoing action that results in a continuous violation of law.  The mere repetition of an allegedly wrongful act does not render it a continuing wrong.

I now turn to the merits of petitioners’ remaining claim that respondent Watson should be removed for impermissibly disclosing confidential notes on February 12, 2018 and/or that the board erred by disclosing said notes, which is timely.  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’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).

Moreover, school board members, as public officers, take an oath of office to uphold the law and faithfully discharge their duties (N.Y. State Constitution Art. XIII, §1; Public Officers Law §10; Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315). Among other things, school boards are responsible for educational standards, budget matters, management issues, and health and safety (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315). In carrying out these duties, individual board members have a fiduciary obligation to act constructively to achieve the best possible governance of the school district (see Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Kozak, 34 id. 501, Decision No. 13,396).

In addition to a board member’s general duties and responsibilities, General Municipal Law §805-a(1)(b) specifically provides that no municipal officer or employee (including a school board member) shall “disclose confidential information acquired by him [or her] in the course of his [or her] official duties or use such information to further his [or her] personal interests.”  The seminal decision in Application of Nett and Raby (45 Ed Dept Rep 259, Decision No. 15,315) held that, within the public school system, the term “confidential,” means “[i]nformation that is meant to be kept secret.”[4]  As this decision recognized, it is the sole province of the Commissioner of Education to define the meaning of the word “confidential” within the public school system and ensure its uniform application in this context (see Komyathy v. Bd. of Educ. of Wappinger Cent. School Dist. No. 1, 75 Misc2d 859).

It is well-settled that a board member’s disclosure of confidential information which violates General Municipal Law §805-a(1)(b) may constitute grounds for a board member’s removal from office pursuant to Education Law §306 (see Application of Bd. of Educ. 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).

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, petitioners claim that, on or about February 12, 2018, respondent Watson disclosed “unredacted” notes to a reporter with the Poughkeepsie Journal.  As proof, petitioners attach an email from the reporter to counsel for petitioner Simpson.  In this email, the reporter states that she is “writing an article on the Poughkeepsie district’s graduation investigation and subsequent appeal,” and that, in the article, she planned to “cit[e] records that relate[d] to Phee Simpson (see attached).”  The email purported to include three attachments.  Petitioners have attached what they assert to be copies of these three attachments together with the instant appeal and application.  Respondents deny petitioners’ contentions in their answer. 

On this record, petitioners have failed to meet their burden of proving that respondent Watson or respondent board were responsible for disclosing these documents to the reporter or to anyone else.  The first element of a claimed disclosure of confidential information is disclosure, and a petitioner must prove that an individual, in fact, disclosed allegedly confidential information (see Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263 [holding that board failed to prove that a removed board member, in fact, disclosed the names and home addresses of district employees; at most, the board confirmed that two district employees had access to an employee mailing list but failed to prove a connection at the hearing between such list and the board member]; Appeals of Hoefer, 45 id. 66, Decision No. 15,263 [holding that a board, which initiated a removal proceeding against one of its members, did not establish that a board member was responsible for certain unsigned articles on a website even though the board member admitted that he wrote other, similar articles on the same website]).  Petitioners have wholly failed to meet this showing, providing no facts or assertions suggesting that any respondent provided the Poughkeepsie Journal reporter with the allegedly confidential information.  Therefore, the appeal must be dismissed and the application for removal of respondent Watson must be denied.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE

 

[1] Respondent Clifford asserts on appeal that she was not referring to the topics of the special meeting of the board and, instead, was referring to attorney Aldinger’s investigation.

 

[2] While petitioners elaborate upon the circumstances under which service was made in their reply, they did not submit an affidavit from the process server, the only individual who appears to have personal knowledge of the circumstances under which service was attempted.

 

[3] Moreover, I note that petitioner Lovinsky, as a district resident, has standing to seek the removal of respondents Clifford and Watson for alleged misconduct (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of Wolpin, 52 id., Decision No. 16,489; Appeal of Hertel, 49 id. 217, Decision No. 16,021).

 

[4] In a memorandum dated December 9, 2005, State Education Department Counsel and Deputy Commissioner for Legal Affairs notified school officials, including school board members, and school attorneys across the State of the Nett and Raby decision and expressly indicated that the Commissioner’s decision differed from the interpretation of the term “confidential” offered by New York State’s Committee on Open Government.