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Decision No. 12,604

Application of ARTHUR SCALA for the removal of Daniel Greenwald from his position as a member of the Board of Education of the Lindenhurst Union Free School District.

Decision No. 12,604

(November 29, 1991)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a member of the Board of Education of the Lindenhurst Union Free School District, seeks an order pursuant to Education Law '306 removing respondent from that same board. The application must be denied.

At its July 22, 1991 meeting, the Board of Education of the Lindenhurst Union Free School District announced that in executive session, the superintendent had submitted his resignation, effective September 30, 1991, rather than comply with a board directive. That announcement created a commotion among the public attending the meeting. At that point, respondent revealed that he was aware of other occasions when the superintendent had threatened to resign. While respondent was speaking, he was advised by another board member that respondent was improperly disclosing confidential material discussed at an executive session.

Petitioner contends that respondent, in making the above-noted statement, breached his duty as a board member not to disclose confidential information acquired in the course of his official duties. Such disclosures are prohibited by the provisions of General Municipal Law '805-a(1)(b) and the school district's code of ethics adopted pursuant to General Municipal Law '806.

Before the Commissioner of Education will remove a member of a board of education, it must be established that the individual has committed a wilful violation of law or neglect of duty (Education Law '306; Matter of Hunt, et al., 23 Ed Dept Rep 296; Matter of Sterling, 23 id. 294). To be considered wilful, the board member's actions must have been intentionally done with a wrongful purpose (People v. Skinner, 37 App Div 44, aff'd 159 NY 162; Application of Mody and Casey, 30 Ed Dept Rep 402; Appeal of Cotroneo, 29 id. 421). Petitioner has failed to meet that burden.

In affidavits submitted by respondent and another school board member, respondent has shown that the superintendent's threat to resign on other occasions was not confidential and that respondent learned of those threats prior to becoming a board member. Even if the information disclosed by respondent had been confidential and gained during the course of respondent's service on the board, I would nevertheless deny petitioner's application. It is apparent from the record that respondent's remarks were made extemporaneously, in the midst of an uproar created by the announcement of the superintendent's resignation, and in an attempt to place the announcement in proper perspective. Because there is no indication that respondent's statement was done with a wrongful purpose, I find no basis to remove him from office.

Respondent has also requested that I certify, pursuant to Education Law '3811(1), that he appeared to have exercised his powers and performed his duties in good faith. A certificate of this nature may only be issued if there is record evidence that the party seeking the certificate notified the board of education in writing of the commencement of an appeal to the Commissioner and that the board, within 10 days following receipt of that notice, designated and appointed legal counsel to represent the individual. The record indicates that respondent timely notified the board of the commencement of this appeal and that the board appointed legal counsel to represent respondent. In light of my finding that there is no basis for the removal of respondent from his position, respondent is entitled to receive a certificate of good faith.