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Decision No. 12,697

Application of WALTER A. and KATHERINE S. ANDREWS for the removal of Harvey Kaufman as Superintendent of the City School District of the City of Cortland; Lynn New as Principal of Virgil Elementary School and John DiPietro as Head Custodian of Cortland Junior-Senior High School for misuse of public funds.

Decision No. 12,697

(May 11, 1992)

O'Hara, O'Connell, Hrabchak & Gebo, P.C., attorneys for respondents, Sharon A. Sutter, Esq., of counsel

SOBOL, Commissioner.--Petitioners Walter and Katherine Andrews seek removal of respondents for misuse of public funds. The application must be denied.

During the 1987-88 school year, the petitioners publicly accused respondents of sexual misconduct, forgery and of conducting private business during district hours. In response to the accusations, respondents sued the petitioners for libel and slander in State Supreme Court and the Cortland City School District's Board of Education authorized payment for the lawsuit. The case was tried and the jury found for the Andrews. Judgment was entered on October 3, 1990. Petitioners commenced this application for removal on February 18, 1991.

Petitioners allege that respondents improperly accepted public funds to finance their defamation suit. Petitioners also repeat the allegations that gave rise to the defamation suit, specifically, that respondent Kaufman sent a forged document to the "Federal Labor Board" in 1977 and tampered with petitioner Andrews' personnel file; that respondent New engaged in sexual misconduct and committed perjury; and that respondent DiPietro conducted private business during school hours.

Petitioners request that respondents reimburse the school district for any attorney's fees paid by the district. Petitioners also seek respondents' removal and a monetary settlement of $100,000 for defamation of character and legal fees. If respondents retain their positions, petitioners demand $1,000,000.

Respondents allege that the petition was not filed in a timely manner and should be dismissed. Respondents also contend that petitioners have failed to substantiate their claims and seek relief beyond the scope of the Commissioner's authority.

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 275.16). Several of the complaints raised in the petition date back several years, including one that allegedly occurred in 1977. Petitioners acknowledge the delay in filing the petition, but seek to excuse it on the grounds that they waited until respondents' time to appeal the court's determination in their defamation suit had run. The time to appeal this decision would have expired 30 days after the court issued its decision in October 1990. Since the appeal was filed almost a year and a half thereafter, I find no reasonable excuse for the prolonged delay. The application for removal must, therefore, be dismissed as untimely (Appeal of a Child Suspected of Having a Handicapping Condition, 30 Ed Dept Rep 448; Appeal of Caunitz, et al., 30 id. 396).

Petitioners also seek to remove respondents New and DiPietro, who are not school officials subject to removal proceedings under Education Law "306. That law authorizes the Commissioner of Education to remove school officers, including the superintendents of schools, who are found guilty of a wilful violation of law, neglect of duty or of wilfully disobeying any decision, order, rule or regulation of the Board of Regents or of the Commissioner of Education. However, neither a school principal nor a custodian are school district officers. As such, neither respondent New nor DiPietro is subject to removal under Education Law "306 (Matter of Maskell, 17 Ed Dept Rep 385). Therefore, the application would have been denied with respect to them.

With respect to respondent Kaufman, who is the superintendent of schools, a removal action may be commenced under Education Law "306. To sustain an application for removal, the underlying act must be 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). Petitioners bear the burden to establish the facts upon which they seek relief, as well as entitlement to that relief (8 NYCRR 275.10; Appeal of Negrin, 29 Ed Dept Rep 484; Appeal of Executone Northeast, Inc., 29 id. 18). On the record before me, petitioners have failed to demonstrate that respondent Kaufman wilfully misused public funds. Petitioners only submit as "evidence" newspaper articles to support their allegations. However, newspaper articles do not constitute adequate proof of the truth of facts stated therein (Appeal of Como, et al., 28 Ed Dept Rep 483; Matter of Norden, 23 id. 94). Since petitioners have failed to met their burden of proof to establish that respondent wilfully misused public funds, their application for respondent Kaufman's removal must be dismissed on the merits as well. With respect to petitioners' demand for compensatory damages or costs, an appeal brought pursuant to "310 of the Education Law is not the proper forum for claiming monetary damages, attorney's fees or costs (Appeal of Lyon, 30 Ed Dept Rep 169; Appeal of Sileo, 28 id. 313).

While I am constrained to deny petitioners' application for removal, the petition raises serious allegations regarding the possible misuse of public funds to underwrite a defamation suit commenced by school district employees. A board of education is without authority to authorize expenditures for a defamation suit (Education Law "1709, "1710). Because the record does not establish whether public funds were improperly expended, I am referring this matter to my Office of Administrative Audit for full investigation.