Decision No. 18,143
Appeals of DOROTHY ZIEGELBAUER from action of the Board of Education of the Tuxedo Union Free School District regarding her removal from office.
Decision No. 18,143
(July 7, 2022)
Littman Krooks LLP, attorneys for petitioner, Marion M. Walsh, Esq., of counsel
Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David S. Shaw and Beth L. Harris, Esqs., of counsel
ROSA., Commissioner.--In two separate appeals, petitioner seeks relief against the Board of Education of the Tuxedo Union Free School District (“respondent” or “board”). In the first appeal (Ziegelbauer I), petitioner seeks to stay removal proceedings brought against her pursuant to Education Law § 1709 (18). In the second appeal (Ziegelbauer II), petitioner seeks reinstatement to the board following her removal on December 15, 2021. Because the appeals raise similar issues of law and fact, they are consolidated for decision. The appeals must be dismissed.
Petitioner was first elected to the board in 2016. During an executive session on September 14, 2021, petitioner and her colleagues on the board received copies of a confidential report. Respondent’s superintendent instructed the board members to return the report before the conclusion of executive session. The confidential report pertained to an alleged leak of student information and included information about petitioner’s child. Petitioner, after contacting her attorney, decided to retain the report. There is no evidence in the record that petitioner has returned the report to respondent.
By resolution dated September 24, 2021, the board voted to bring two charges of official misconduct against petitioner. On October 1, 2021, respondent’s district clerk served petitioner with written notice of the charges. Charge one alleged that petitioner improperly disclosed confidential information to a teachers’ union representative. Charge two stated that petitioner committed official misconduct as follows:
… on or about September 15, 2021, Dorothy Ziegelbauer was issued a confidential report prepared by [a] Board appointed investigator … regarding an alleged breach of confidential personally identifiable student information that was reviewed in executive session and to be collected back from each member of the Board to protect the privacy rights of those individuals identified in the Report. Ms. Ziegelbauer refused to return the report at the meeting and refuses to return the report to date.
Petitioner answered by letter dated October 12, 2021. Among other things, petitioner requested a hearing and that the board president be “recuse[d]” from participating in such hearing because he “harbor[ed] a certain adverse animus towards [petitioner] ....”
Petitioner commenced Ziegelbauer I on October 13, 2021, seeking a stay of the removal hearing; to have the removal hearing heard by the Commissioner rather than the board; and, alternatively, for an order directing the recusal of the board president. Her request for interim relief was denied on October 21, 2021.
Ziegelbauer I 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 that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 ). Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522). Petitioner requested a stay, or transfer, of the removal proceeding against her. However, petitioner’s request for interim relief was denied, the hearing has concluded, and petitioner was removed from her position on the board. Accordingly, no meaningful relief can be granted in Ziegelbauer I (see Appeals of Hoefer, 45 Ed Dept Rep 66, Decision No. 15,263; Appeal of Jones-White, 44 id. 347, Decision No. 15,194).
In light of this disposition, I need not address the parties’ remaining arguments in Ziegelbauer I.
The hearing, presided over by a hearing officer, convened on October 15, 2021. Following the conclusion of the hearing, on December 15, 2021, the board found petitioner guilty of both charges. The board admonished petitioner for the conduct described in charge one and determined that the conduct described in charge two warranted her removal. Ziegelbauer II ensued. Petitioner’s request for interim relief was denied on January 21, 2022.
Petitioner appeals her removal from the board and seeks reinstatement. She maintains that charge two, on its face, does not meet the standard for official misconduct set forth in Education Law § 1709 (18). She further argues that the board president was biased against her and should have been disqualified from the removal proceeding. She additionally asserts that the board should have appointed special counsel to conduct the hearing. She also contends that she did not disclose the confidential report or use it for her personal interest. Finally, she argues that she relied upon the advice of counsel in retaining the report.
Respondent argues that petitioner has failed to meet her burden of proving that her removal from office was unlawful or that the board president was biased against her.
First, I must address two procedural matters. Respondent requests that I reject petitioner’s reply because it contains new material; namely, the transcript of the removal proceedings. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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. However, I find that the transcript, the accuracy of which respondent does not contest, is necessary to permit meaningful appellate review (see generally Appeal of M.B. and A.W., 57 Ed Dept Rep, Decision No. 17,378). Therefore, in my discretion, I have accepted the transcript of the removal proceedings.
The parties also seek admission of additional submissions on appeal. 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 does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Upon review, I decline to accept the additional documents submitted by the parties in this matter.
Turning to the merits, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
First, petitioner argues that charge two was facially invalid as it failed to meet the requirements of Education Law § 1709 (18). Education Law § 1709 (18) empowers a board of education “[t]o remove any member of their board for official misconduct.” The “official misconduct” must clearly relate to a board member’s official duties, either because of the allegedly unauthorized exercise of the member’s powers or the intentional failure to exercise those powers to the detriment of the school district (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263; Appeal of Jones-White, 44 id. 347, Decision No. 15,194; Appeal of Cox, 27 id. 353, Decision No. 11,973).
I find that charge two meets the standard for official misconduct set forth in Education Law § 1709 (18). Respondent alleges that, during an executive session, petitioner improperly retained a confidential report that she was asked to return at the end of executive session. Petitioner only gained access to the report due to her role as a board member. I find that this wrongdoing committed in her capacity as a school officer is quintessential “official misconduct.”
Second, petitioner claims that the board president was biased and should not have voted on the charges against her. Initially, since Education Law § 1709 (18) gives a board of education the authority to initiate removal proceedings for cause against any of its members, it is appropriate that board members be permitted to conduct the hearing and vote on the charges. Petitioner has not met her burden of proving that the board president should have recused himself, merely asserting that “animus” existed between her and the board president. In the specific context of removal for official misconduct, one court has opined that “[t]he mere possession of information regarding conduct of a fellow board member … is not sufficient ground to disqualify those sitting in judgment, although they may also be witnesses at the administrative hearing” (Komyathy v Board of Educ. of Wappinger Cent. School Dist. No. 1, 75 Misc 2d 859, 868 [Sup Ct, Dutchess County 1973]). Thus, absent proof of bias, the mere fact that the board president testified at the removal hearing does not require his disqualification (Komyathy, 75 Misc 2d 859 [a board member could not vote on charges against colleague facing removal where both had engaged in “physical and verbal altercations”; another board member who was a mere “witness” to conduct permitted to vote]; see Appeal of Forcucci, 57 Ed Dept Rep, Decision No. 17,204).
Relatedly, petitioner claims that she was improperly precluded from exploring the issue of the board president’s bias or animus at the hearing. The hearing officer generally limited petitioner’s questions to the charges that were the subject of the hearing. With specific respect to charge two, the hearing officer reasoned that “Charge No. 2 deals with behavior on September 15th, simply with being handed a report, told to give it back, and refused to give back.” Thus, she refused to allow counsel for petitioner to elicit testimony about the content of the confidential report. I find that this constituted a reasonable exercise of the hearing officer’s discretion. While petitioner suggests that her conduct was “inextricably linked” to prior charges against the board president, she has not explained how the board president’s conduct caused, or justified, her retention of a confidential document for her personal use.
Third, petitioner asserts that it was improper for the law firm that ordinarily represents respondent to represent it at the hearing. Petitioner identifies no requirement that a board engage special counsel for such proceedings; she also fails to allege that the firm engaged in any wrongdoing. Additionally, respondent appointed an attorney/arbitrator to preside over the hearing who had no association with the law firm. Thus, petitioner has failed to demonstrate any error or prejudice in connection with respondent’s use of its customary law firm.
Finally, petitioner argues that she was improperly found guilty of charge two because she never disclosed the confidential report or used it for her personal interest. She further asserts that her actions were justified as she relied upon the advice of counsel. It is uncontroverted that petitioner received the confidential report in executive session and the superintendent asked the board to return it. Petitioner testified that, prior to the superintendent’s request, she read the report two or three times, ascertaining that it concerned staff members, board members, and her child. She also testified that she had a right to retain the report “as a parent.” Petitioner further testified that she “retain[ed]” the report “for [her] own personal understanding and review as both a board member and a parent,” stating that she was advised by her attorney that no law prohibited her retention thereof.
I find that the record supports respondent’s determination that petitioner engaged in official misconduct. Board members “have a fiduciary obligation to act constructively to achieve the best possible governance of the school district” (Application of the Board of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147). Petitioner’s retention of the confidential report based upon her personal interest—which was contrary to the superintendent’s instructions—violated this duty.
Contrary to petitioner’s argument, there is no mindset requirement for official misconduct under Education Law § 1709 (18). The intent of willfulness only applies to proceedings for the removal of school officers by the Commissioner of Education (see, e.g., Application of Board of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147). Similarly, the defense of reliance on advice of counsel is only relevant to the removal of school officers under Education Law § 306 because it negates the mindset of willfulness (see Matter of Gagliotti, 24 Ed Dept Rep 402, Decision No. 11,440; Matter of Israel, 20 id. 67, Decision No. 10,318).
Given these conclusions, I need not decide whether petitioner’s conduct violated General Municipal Law § 805-a (1) or district policy 1301. I note, however, that official misconduct under Education Law § 1709 (18) is not dependent upon a violation of statute or district policy (see, e.g., Appeal of Williams, 61 Ed Dept Rep, Decision No. 18,116; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785; Appeals of Hoefer, 45 id. 66, Decision No. 15,263).
To the extent petitioner’s remaining arguments are not specifically addressed herein, they are without merit.
THE APPEALS ARE DISMISSED.
END OF FILE
 Petitioner does not challenge respondent’s determination on charge one.
 I further note that one attorney represented the board at the hearing, while a different attorney advised the board in its deliberations (see Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,205 [rejecting challenge to law firm’s use of one attorney to represent the district at a long-term suspension hearing and another to advise the board]).