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Decision No. 12,709

Application of LORRAINE VERITY 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. 12,709

(June 1, 1992)

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

SOBOL, Commissioner.--Petitioner, a taxpayer of the Lindenhurst Union Free School District, seeks an order removing respondent from his position as a member of the board for an alleged violation of the Penal Law. The application must be denied.

Petitioner maintains that respondent violated Penal Law "265.01 and school district policy when he attended a school board meeting held on November 20, 1991 at one of the district's elementary schools with a firearm in his possession.

Before addressing the merits of this appeal, it is necessary to address several procedural issues. A review of the record reveals that petitioner's reply papers contain new material which was not previously set forth in the petition and which does not respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Matter of Pronin, 27 Ed Dept Rep 203). Therefore, I will not consider those portions of the reply that raise new matters.

Respondent requests that this matter be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown. Petitioner's complaint involves an alleged action that took place on November 20, 1991. However, petitioner did not serve her petition until March 5, 1992, approximately 3 1/2 months after the incident in question allegedly occurred. Petitioner acknowledges that the appeal is late, but maintains that its lateness should be excused because she did not learn of the alleged incident until March 4, 1992. The record before me indicates that respondent's alleged conduct was known to members of the public since November 20, 1991. The fact that a particular individual has just recently become aware of an allegation against a board member cannot be the basis for excusing an untimely appeal. In such instances, the time to bring an appeal is determined by the date the alleged misconduct occurred.

Petitioner also maintains that the lateness of the appeal should be excused because respondent was out of the State for an extended period of time. In light of the fact that respondent denies that allegation and petitioner does not set forth any dates regarding respondent's absences from the State, that excuse is also rejected. Accordingly, this appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits. As noted above, petitioner maintains that pursuant to Education Law "306, respondent must be removed from office because he violated Penal Law "265.01 and school district policy when he attended a school board meeting with a firearm in his possession. While petitioner has no personal knowledge of the incident, she has supplied copies of two identical affidavits from individuals who maintain they sat next to respondent, a retired police officer, at the school board meeting and saw that he had a gun strapped to his left ankle. Respondent denies the statements in the affidavits and maintains that it is his practice to wear a runner's wallet strapped to his ankle and he was wearing such wallet, and not a gun, at the November 20th board meeting.

Education Law "306 authorizes the Commissioner of Education to remove a member of a board of education whenever it is proven to the Commissioner's satisfaction that the board member has engaged in a willful violation or neglect of duty under the Education Law or any other act pertaining to the operation of the school system or has willfully disobeyed a decision, order, rule or regulation of the Regents or of the Commissioner of Education. Penal Law "265.01 provides in pertinent part:

A person is guilty of criminal possession of a weapon in the fourth degree when:


(3) He knowingly has in his possession a rifle, shotgun or firearm in or upon a building or grounds, used for educational purposes, of any school, college or university, except the forestry lands, wherever located, owned and maintained by the State University of New York college of environmental science and forestry, without the written authorization of such educational institution;...

In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR "275.10; Appeal of Singh, 30 Ed Dept Rep 284; Appeal of Pickreign, 28 id. 163; Matter of Keiling, 25 id. 122). Petitioner's appeal is based solely on the affidavits of two other individuals. In those affidavits the individuals state that they sat next to respondent at the meeting. However, those statements are contradicted in affidavits submitted by two other board members who state that respondent sat between them at the November 20th board meeting. In addition, the affidavits submitted by petitioner contain internal inconsistencies. In light of the foregoing and the fact that petitioner has not offered any evidence to rebut respondent's contention that he was wearing a runner's wallet and not a gun at the meeting, petitioner has not met her burden of proof in this appeal.

Finally, respondent alleges that he has complied with Education Law "3811 and requests that I certify that he acted in good faith with respect to the exercise of his duties in connection with this application, for the purpose of obtaining reimbursement from the district for his legal expenses. In light of the fact that this application is denied and respondent has complied with Education Law "3811, I certify that respondent acted in good faith.