Appeal of BRIAN BUTLER and DIANNE SHEFFIELD from action of the Board of Education of the Massapequa Union Free School District and Gary Baldinger regarding a resolution and application for the removal of Gary Baldinger as a member of the Board of Education of the Massapequa Union Free School District.

Decision No. 17,604

(March 20, 2019)

Hamburger, Maxson, Yaffe & McNally, LLP, attorneys for respondents, Richard Hamburger and Andrew K. Martingale, Esqs., of counsel

ELIA, Commissioner.--Petitioners challenge an August 2, 2018 resolution passed by the Board of Education of the Massapequa Union Free School District (“respondent board”) and seek the removal of board member Gary Baldinger (“respondent Baldinger”) (collectively, “respondents”) for his actions in connection therewith.  The appeal must be dismissed and the application must be denied.

Petitioner Butler commenced a previous appeal pursuant to Education Law §310 (see Appeal of Butler, 58 Ed Dept Rep, Decision No. 17,544).  That appeal set forth the relevant facts giving rise to the instant appeal, which need not be repeated in detail here.  Briefly, petitioner Butler was a member of respondent board until, in June 2018, respondent board removed him from such position for numerous unexcused absences from board meetings.  In Appeal of Butler (58 Ed Dept Rep, Decision No. 17,544), I declined to set aside respondent board’s removal of petitioner Butler.

As in the previous appeal, petitioner Butler asserts in the instant petition that respondent Baldinger threatened him during a March 15, 2018 discussion following a board meeting when he stated that: “If I were only 20 years younger, there would be two hits ....”  In Appeal of Butler (58 Ed Dept Rep, Decision No. 17,544), I found that, based on the evidence in the record, the remark petitioner attributed to respondent Baldinger, while clearly inappropriate, appeared on its face to be an expression of anger rather than an imminent threat of physical attack.  I further found, among other things, that petitioner Butler’s subsequent behavior undercut his contention that the remark was so egregious that he was afraid to attend board meetings for many months thereafter; that the record did not establish that petitioner Butler was too afraid to attend subsequent board meetings out of fear for his physical safety; and that petitioner Butler first raised his purported fear for his physical safety as an excuse for his absences in a June 22, 2018 letter to respondent board, as respondent board was considering vacating his seat.

As relevant to the instant appeal, on or about July 31, 2018, petitioner Butler served respondent Baldinger with a copy of a civil action alleging assault and intentional inflection of emotional distress arising from respondent Baldinger’s conduct on March 15, 2018 described above (the “civil action”).

On August 2, 2018, respondent board unanimously adopted a resolution which granted respondent Baldinger’s request for defense and indemnification “contingent upon the advice and approval of special counsel.”

On or about August 9, 2018, counsel for respondent Baldinger in the civil action received an extension of time to answer the complaint from August 20, 2018 to September 20, 2018.

In a letter dated August 15, 2018, respondent board’s insurance carrier denied respondents’ request for defense and indemnification of respondent Baldinger in the civil action.

In a letter dated August 23, 2018, respondent board’s insurance carrier rescinded its original position and indicated that it would defend and “potentially indemnify” the district and respondent Baldinger in connection with the civil action.  In the letter, the insurance carrier reserved its right to deny coverage if it was demonstrated that respondent Baldinger’s actions “were unprovoked, unwarranted and not in furtherance of Gary T. Baldinger  [’s] duties for the [d]istrict,” or if respondent Baldinger “intended to inflict either physical harm or emotional distress upon the [p]laintiff [i.e., petitioner Butler].”  This appeal ensued.  Petitioners’ request for interim relief was denied on August 24, 2018.

Petitioners contend that respondent Baldinger’s August 2, 2018 vote to authorize his indemnification in the civil action was improper because, pursuant to Public Officers Law Article 18, he did not, as required, disclose his “interest” in the resolution.  Petitioners further argue that such violation constituted a wilful violation of law or neglect of duty supporting respondent Baldinger’s removal from office pursuant to Education Law §306.  Petitioners also assert that respondents’ vote to indemnify respondent Baldinger was arbitrary, capricious, and violative of board policy.   Petitioners additionally argue that respondent board’s defense and indemnification of respondent Baldinger constitutes an “unconstitutional gift of public funds” in violation of the New York State Constitution.  Finally, petitioners assert that respondent Baldinger acted inappropriately in making the alleged comment on March 15, 2018 and argue that respondents subjected petitioner Butler to “systemic discrimination.”  Petitioners seek respondent Baldinger’s removal from office pursuant to Education Law §306 and annulment of the August 2, 2018 resolution.

Respondents deny petitioners’ allegations and assert that petitioners have failed to establish that respondent Baldinger violated any law, let alone committed a wilful violation of law.  In this respect, respondents argue that they acted on the advice of counsel in voting to defend and indemnify respondent Baldinger and that such reliance on the advice of counsel precludes a finding of wilfulness.  Respondents also argue that the August 2, 2018 resolution did not, in fact, constitute a decision to defend and indemnify respondent Baldinger as it was “contingent upon the advice and approval of special counsel.”  Respondents further assert that respondent board has a statutory duty to defend and indemnify board members such as respondent Baldinger who are named in a civil action pursuant to Public Officers Law §18(3)(a).

First, I must address two preliminary matters.  Respondents object to petitioners’ reply on the basis that it exceeds the permissible scope of a 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Additionally, respondents submitted two supplemental affirmations from their counsel in this matter.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).

Respondents have provided proof of service on petitioners, and petitioners have not objected to such submission and the consideration of the additional materials.  Therefore, to the extent that these affirmations pertain to information concerning the board’s indemnification of respondent Baldinger that was not available at the time respondents served their opposition to petitioners’ request for interim relief or answer and are directly related to the claims raised herein, I have accepted them pursuant to the provisions of Commissioner’s regulation §276.5 (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Lewis, 52 id., Decision No. 16,458).

The application for removal must be denied for failure to include the notice required by 8 NYCRR §277.1(b). Section 277.1(b) of the Commissioner’s regulations requires that a notice of petition in an application for removal specifically advise a respondent that an application is being made for respondent’s removal from office pursuant to Education Law §306.  In this case, petitioners failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  It is well-settled that a notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the respondent (Application of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,391; 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 §277.1(b) of the Commissioner’s regulations necessarily results in a jurisdictional failure and requires dismissal (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Appeal of Kelly, 45 id. 38, Decision No. 15,253). Accordingly, the application must be denied on this basis.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  In a supplemental affirmation, respondents indicate that, subsequent to commencement of this appeal, respondent board resolved to defend and indemnify respondent Baldinger at a September 13, 2018 board meeting.[1]  Thus, the August 2, 2018 conditional resolution which petitioners challenge in this appeal was superseded by the September 13, 2018 resolution.  Petitioners did not commence a subsequent appeal pursuant to Education Law §310 to challenge the September 13, 2018 resolution, nor did they address such resolution in their reply, which was served seven days after respondent board acted on such resolution.[2]  Under these circumstances, petitioners’ request that I declare the August 2, 2018 resolution “null and void” has become academic, and the appeal must be dismissed as moot.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE