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Decision No. 12,700

Application of EDWARD SABUDA and DENNIS CHUDZIK for the removal of Helen Chmiel as president and trustee of the Board of Education of the City School District of the City of Lackawanna and for related relief against Henry Kozak, Anthony Siuta, Aldo Filipetti and Richard Juda.

Decision No. 12,700

(May 26, 1992)

Albrecht, Maguire, Heffern & Gregg, P.C. attorneys for respondents Chmiel, Kozak, Siuta and Filipetti, John M. Curran, Esq., of counsel

SOBOL, Commissioner.—Petitioners seek the removal of respondent Chmiel from her position as president and trustee of the Board of Education of the City School District of the City of Lackawanna ("the district"). The application must be denied.

Petitioners are trustees of the district’s board of education ("the board"). They allege that, at a special meeting of the board on July 30, 1991, respondent Chmiel proposed a resolution appointing respondent Filipetti to the position of interim superintendent of schools. The resolution was presented for a vote and passed by a majority of the board. Petitioners complain they had no prior notice of respondent Chmiel’s decision to introduce this resolution. They contend that respondents Chmiel and Filipetti conspired to secure Filipetti’s appointment, noting that the two lunched together at a restaurant on July 29, 1991. Petitioners argue that Chmiel prevented them from performing their duties as trustees of the board, by negotiating independently with Filipetti. Petitioners, therefore, seek respondent Chmiel’s removal from office pursuant to Education Law " 306.

Respondent Juda, the district’s school attorney, represents himself in this appeal. He argues that the petition should be dismissed as against him, because it contains neither a clear and concise statement of petitioners’ claim nor a demand for relief against him (8 NYCRR 275.10). In their reply, petitioners agree that there is no claim against respondent Juda. I find, similarly, that petitioners have failed to state a claim against respondents Kozak, Siuta and Filipetti. The petition seeks relief only against respondent Chmiel. The petition is therefore dismissed as against respondents Juda, Kozak, Siuta and Filipetta.

Petitioners also served the petition upon Barbara Rosinski, the district clerk, although neither the district nor Ms. Rosinski were named as respondents. To the extent petitioners seek to include the district or Ms. Rosinski as respondents in this application, I find the petition must be dismissed as against them because they were not properly named as party respondents (8 NYCRR 275.8[a]).

Petitioners attempted to commence this appeal on August 29, 1991. Their attempt was ineffectual, however, because they served copies of the petition on respondents by mail, rather than in person, as required by the Regulations of the Commissioner of Education (8 NYCRR 275.8[a]). My Office of Counsel advised petitioners of this jurisdictional deficiency, informing them that, for purposes of the 30-day limitation for commencing appeals to the Commissioner (8 NYCRR 275.16), the appeal would be deemed instituted on the day petitioner served respondents personally. Petitioners personally served respondent Chmiel on September 23, 1991. The meetings in question occurred on July 29 and July 30, 1991, more than 30 days before the date of personal service. Because an appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, I find this application time-barred (8 NYCRR 275.16). The petition must therefore be dismissed.

This application would have been dismissed on the merits as well. Education Law " 306 authorizes the Commissioner of Education to remove a trustee or member of a board of education from office for willful violation or neglect of duty under the law (Education Law " 306[1]; Matter of Legatos, 23 Ed Dept Rep 10, 11). As in Matter of Legatos, supra, petitioners have failed in their petition to establish any willful misconduct by respondent Chmiel. Although their reply sets forth additional incidents of alleged misconduct by Chmiel, a reply may not be used to supply information which should have been presented in the petition, particularly in an application for removal, where specific notice of the charges is critical (8 NYCRR 277.1; Application of Robert, 30 Ed Dept Rep 378, 380). Consequently, I find no basis for removing respondent Chmiel from her position as president and trustee of the board (see, Matter of Legatos, 23 Ed Dept Rep 10, supra).

Education Law " 3811(1) provides that a school district must pay for a trustee’s legal expenses in proceedings arising out of the trustee’s exercise of his or her official duties. To invoke " 3811, the trustee must notify the board of education, in writing, of the commencement of the proceeding, within five days after service of process. Within 10 days following receipt of that notice, the board must designate and appoint legal counsel to represent the trustee; and the court or Commissioner of Education, as appropriate, must certify that the trustee appeared to have acted in good faith with respect to the exercise or his powers of the performance of his duties under the Education Law (Education Law " 3811[1]; Application of Robert 30 Ed Dept Rep 378, 380, supra). Pursuant to Education Law " 3811(1), respondents request that I certify their apparent good faith.

Although petitioners concede that respondents complied with the technical requirements of Education Law " 3811, they argue that I should not grant respondents a certificate of good faith under that section. Petitioners rely on Matter of Singer (153 Misc 755, 276 NYS 260 [1934]) and an opinion of the State Comptroller (17 Opn State Comptroller 173 [1961]), both of which state that a school district maynot pay for legal expenses incurred by school board members defending themselves against removal proceedings. Matter of Singer and the Comptroller’s decision, however, were both rendered prior to 1965, when the Legislature amended " 3811 specifically to permit districts to cover the reasonable expenses incurred by a school board trustee in defending himself against charges of misconduct (L 1965, ch 361, " 1; Matter of Keeley, 14 Ed Dept Rep 396, 403). Petitioners concede that respondents promptly notified the board of education of this application, and that the board appointed counsel to represent them. Having found no improper conduct by respondents, I hereby certify their apparent good faith regarding the allegations set forth in the petition (Matter of Legatos, 23 Ed Dept Rep 10, 12, supra).