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Decision No. 12,719

Application of RICHARD EISNER for the removal of Daniel Greenwald, Robert MacInness, Patricia Lawry, James Dimilatis and Randal Saeger from their positions as members of the Board of Education of the Lindenhurst Union Free School District.

Decision No. 12,719

(June 16, 1992)

Cooper, Sapir & Cohen, P.C., attorneys for respondents, 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 respondents from that same board. The application must be denied.

At a public meeting of the board held on July 30, 1991, a disturbance occurred in the audience that resulted in the meeting being adjourned and the Suffolk County Police being summoned to restore order. As a result, several board members were concerned about security at future board meetings. On Friday, August 2, 1991, respondent Saeger spoke to the superintendent to determine whether security arrangements had been made for the next scheduled meeting of the board to be held on August 7, 1991. Because he was dissatisfied with the arrangements, on Monday, August 5, a request was made to conduct a special meeting of the board on the following day at 1:00 p.m. to discuss security issues.

Prior to the August 6 meeting, both petitioner and respondent Saeger had conversations with an employee of the State Education Department regarding the content of that meeting. Thereafter, the Education Department employee wrote to the district clerk, offering his opinion that the topic of security should be discussed in the public session of a board meeting.

Prior to the start of the August 6 meeting, the school attorney advised those board members present that while the general topic of security was one that should be discussed in the public session of a board meeting, there were aspects of that subject that could be discussed in executive session if public discussion would jeopardize the safety of persons and property (see Public Officers Law " 105[1][a]. Subsequently, the board, including all of the respondents in this matter, met in executive session to discuss a personnel matter and security issues for the August 7 meeting. According to affidavits supplied on behalf of the respondents, when the discussion on security strayed to issues that were proper for public discussion, a board member, who has not been named as a respondent in this appeal, would ask for clarification from the school attorney. If advised by the school attorney that an issue should be discussed at a public session, discussion on the issue was terminated.

Petitioner seeks respondents’ removal as board members pursuant to Education Law " 306. Although it is not entirely clear, petitioner seems to argue that respondents should be removed from office because in holding an executive session to discuss aspects of security at board meetings, respondents violated an order of the Commissioner of Education. Such contention is specious. Section 306 authorizes the Commissioner 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. The Education Department employee’s letter, upon which petitioner bases his appeal, is not an order of the Commissioner of Education. In any event, the letter in question merely states the general rule that the issue of security should be discussed in public session. The letter, of course, does not preclude a board of education from discussing in executive session aspects of security which might jeopardize the safety of persons or property if discussed in public. In addition, to the extent petitioner is claiming that respondents have violated the Open Meetings Law (Public Officers Law "" 100, et seq.), I have repeatedly held that alleged violations of that law must be challenged in a judicial proceeding in Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, or in a judicial action for declaratory judgment and injunctive relief, and may not be the basis of an appeal to the Commissioner of Education (Public Officers Law " 107; Appeal of Weaver, 28 Ed Dept Rep 183; Matter ofLawson, 24 id. 132; Matter of Gang, et al., 23 id. 5).

I have reviewed petitioner’s other contentions and find them to be without merit.