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Decision No. 12,578

Appeal of ROSEMARY L. GELYON, from actions of the Board of Education of the City School District of the City of Lackawanna, Mrs. Helen Chmiel as president of the Board of Education, Dr. Thomas McDonnell, as superintendent of schools and Mr. James Shaw, as school attorney, relating to alleged employee harassment.

Decision No. 12,578

(September 5, 1991)

James M. Shaw, Esq., attorney for respondents

SOBOL, Commissioner.--Petitioner appeals from the actions of Mrs. Helen Chmiel, as president of the board of education, relating to a conversation which she had with Mrs. Chmiel while petitioner was serving as a monitor in a cafeteria operated by the Lackawanna City School District. Petitioner also appeals from actions of the board of education relating to their treatment of the issue raised by the conversation, as well as the actions of the superintendent of schools, the interim superintendent and the school attorney concerning that incident. Petitioner requests that I conduct a hearing relating to the possible removal of Mrs. Chmiel, that I reprimand respondent board of education for its alleged failure to conduct an investigation into Mrs. Chmiel's alleged acts of misconduct, and that I instruct respondent board about its authority and duty concerning disciplinary action against another board member. The appeal must be dismissed.

Petitioner, Rosemary L. Gelyon, is a resident of the Lackawanna City School District and is employed as a school lunch monitor at the Truman Elementary School. At a meeting of the board of education held on September 19, 1990, petitioner asked the board about its policy for providing cafeteria substitutes for the district's schools. On the next day, petitioner was working at the Truman Elementary School as a school lunch monitor when she was approached by Mrs. Chmiel, who was in the building to attend a meeting.

Mrs. Chmiel asked petitioner about her complaint regarding availability of school lunch monitor substitutes. At this point, the versions of the parties differ. Petitioner claims that Mrs. Chmiel harassed her in front of students. Mrs. Chmiel, on the other hand, alleges that while she may have raised her voice to be heard over the noise level in the cafeteria, her intent was merely to learn the nature of petitioner's complaint about the board's policy, not to harass petitioner.

Petitioner then wrote to the board of education complaining that she was harassed by Mrs. Chmiel. Petitioner asked the board to investigate Mrs. Chmiel's actions and to instruct Mrs. Chmiel to send petitioner a written apology for her behavior in the cafeteria. At a board meeting conducted on October 18, 1990, one of the board members apologized to petitioner on behalf of the board if errant behavior occurred.

On December 19, 1990 an informal hearing was held before the interim superintendent of schools at which petitioner and Mrs. Chmiel were allowed to give their versions of the conversation which occurred on September 20, 1990. Although both petitioner and Mrs. Chmiel made statements at the informal hearing, the interim superintendent of schools determined that, due to the conflicting, unwitnessed and uncorroborated allegations in their statements, there was no basis for determining what actually happened on the day in question. The interim superintendent then recommended that petitioner and Mrs. Chmiel arrange another meeting to discuss their respective allegations and resolve the acrimony which had resulted from the encounter on September 20, 1990. The interim superintendent also recommended that, to avoid any future occurrences of this nature, the present district policy that visitors to school buildings immediately report to the office of principal should also prospectively apply to all school district officials.

Petitioner alleges that Mrs. Chmiel's conduct constitutes willful misconduct and abuse of the power of her position as president of the board of education. Petitioner further contends that respondent board of education was derelict in its alleged duty to conduct an investigation into Mrs. Chmiel's conduct.

Mrs. Chmiel contends that the petition should be dismissed because of petitioner's failure to substantiate the claim that Mrs. Chmiel engaged in willful misconduct or abused her power as a board member. Respondent board of education requests that I find that it acted prudently in its handling of petitioner's complaint.

Pursuant to "306 of the Education Law, a member of a board of education may be removed if it can be demonstrated that the board member engaged in a willful violation or neglect of duty, or willful disobedience of any decision, rule, or regulation of the Regents or of the Commissioner of Education. If upon a proper petition the likelihood of such a willful violation or neglect is demonstrated, the Commissioner may order a hearing at which the school officer may appear and be represented to contest the possible removal.

In this proceeding, petitioner has failed to allege with any specificity the nature of the willful violation or neglect of duty of respondent Chmiel. Even assuming petitioner's version of the events is correct, petitioner has not demonstrated that Mrs. Chmiel intended to willfully abuse her position as board president. Under the circumstances of this case, it appears that the incident was merely an unfortunate misunderstanding on the part of both parties to this proceeding.

Nor do I find a basis for concluding that respondent board of education was in any manner derelict in the performance of its duties. Respondent board should consider adopting measures as recommended by the superintendent.