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Decision No. 12,682

Application of WILFORD LALONDE for the removal of Donald H. Belcer from his position as superintendent of the Clifton-Fine Central School District.

Decision No. 12,682

(April 14, 1992)

Arthur F. Grisham, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner seeks respondent's removal from his position as superintendent of the Clifton-Fine Central School District because of alleged misuse of district funds. The application must be denied.

On December 3, 1990, the Clifton-Fine Central School District issued a check to the Heart Association in the amount of $35.00 at the direction of its superintendent of schools, Donald H. Belcer ("respondent"). The donation was made in memory of the parent of a school district employee who died in November 1990. The contribution was authorized by respondent's board of education on January 21, 1991. Petitioner commenced this application for respondent's removal on February 15, 1991.

Petitioner alleges that the use of school district funds for contributions to charitable organizations violates Article 8 of the New York State Constitution. Petitioner also alleges that by authorizing the charitable contribution, respondent misused public funds, which constitutes grounds for his removal. Petitioner requests that if I find that respondent violated the law but decline to remove him, that a lesser penalty be imposed requiring him to either forfeit one month's salary or reimburse the district for the $35.00 contribution.

Respondent contends that the appeal should be dismissed because his actions do not constitute a wilful violation of law, neglect of duty or a wilful violation of any legal requirement. As an affirmative defense, respondent asserts that he reimbursed the district in the amount of $35.00, rendering the matter moot. Respondent requests that I issue a certificate of good faith pursuant to Education Law "3811.

Before reviewing the merits, it is necessary to address two procedural issues. Respondent maintains that this petition should be dismissed as moot. The Commissioner determines only matters in actual controversy and will not render a determination on an issue which subsequent events have laid to rest (Appeal of Hebrew Institute, 31 Ed Dept Rep 53; Appeal of Bahret, 30 id. 161). Although the record indicates that respondent has reimbursed the district in full for the $35.00 charitable contribution and the board of education has resolved to repudiate its policy of sending condolences to district employees, whether respondent's actions constitute a basis for his removal remains in controversy. Therefore, the appeal may not be dismissed as moot.

However, the petition must be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of a decision or performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR 276.16). Petitioner's complaint challenges respondent's actions of December 3, 1990. However, petitioner did not serve his petition until February 15, 1991. Since this appeal was not commenced within 30 days of respondent's action, it must be dismissed as untimely.

Even if the appeal were timely, I would, nevertheless, dismiss it on the merits. Education Law "306 authorizes the Commissioner of Education to remove a superintendent of schools for wilful violation of law, neglect of duty or wilful disregard of any decision, order, rule or regulation of the Board of Regents or of the Commissioner of Education. A "wilful" act is one intentionally done with a wrongful purpose to disregard a lawful duty or violate a legal requirement (People v. Skinner, 37 AD 44, 55 NYS 337, aff'd 159 NY 162, [1899]; Application of Gellatly, et al., 30 Ed Dept Rep 10). Because the record fails to demonstrate that respondent Belcer wilfully misused funds, the application must be dismissed on the merits as well (Application of Gellatly, supra; Matter of Rojek and Spadone, 24 id. 434).

Respondent Belcer requests that I certify, pursuant to Education Law "3811(1), that he acted in good faith with respect to the exercise of his powers and the performance of his duties. In addition to finding that respondent acted in good faith, a certificate of this nature may only be issued where the individual seeking the certificate notifies the board of education in writing at the commencement of the appeal, and the board appoints legal counsel to represent the individual within 10 days following receipt of the notice. The February 18, 1991 minutes of the board of education indicate that the board received timely written notice of respondent's application for removal. Respondent also submits an affidavit indicating that the board acted in executive session to appoint the school attorney to represent him within the established timeframe. There is nothing in the record to suggest that respondent Belcer acted in bad faith when he authorized the charitable contribution. Instead, the record substantiates that upon his discovery that the contribution was not authorized by law, he personally reimbursed the district for the expenditure. Barring evidence that the board failed to authorize the designation of legal counsel, I find that all the elements of Education Law "3811 were met and grant respondent's request for a certificate of good faith.

I note that while respondent was unaware that the charitable contribution was unlawful, Article 8, "1 of the New York State Constitution specifically prohibits school districts from making gifts of public monies. While the respondent's sentiment in making the contribution is laudable, such condolences are appropriately made from personal funds of school district employees if they so desire. The use of public monies for such purposes is prohibited (People v. Fitch, 154 NY 14 [1897]).