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Decision No. 12,808

Application of WESLEY EVANS MARTIN for the removal of Norman A. Wagner, Kathleen Vento, John P. Proscia, Sandra Townsend, Mary Finnin and Robert H. Roisman as members of the Board of Education of the Central Islip Union Free School District #13, and the Central Islip Board of Education.

Decision No. 12,808

(September 17, 1992)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks an order removing from office six members of the board of education for alleged wilful violations of law. The application must be denied.

In March 1991, petitioner filed petitions for propositions to be considered at respondent's annual meeting concerning non-mandated transportation, a cafeteria deficit reduction plan and a proposed change in the size of respondent board. Respondent initially failed to include the proposition to change the number of board members in its notice of the annual district meeting, published April 15, 1991. Petitioner complained and cited other alleged defects in the April 15th notice concerning the notice to fill an unexpired term of a former board member and the final date for the district to receive nominating petitions.

Upon advice of counsel, respondent published the proposition regarding the reduction in board seats on April 27, 1991 and amended respondent's annual meeting notice to address the other errors noted by petitioner. This appeal ensued. Petitioner's request for a stay of the annual election and vote pending my determination of the merits of his appeal was denied.

Petitioner alleges that respondent wilfully excluded the statutorily prescribed proposition on board size from its annual meeting notice and that such exclusion constitutes a basis for removal from office. Petitioner also alleges that his civil rights were violated by respondent. Petitioner seeks compensatory damages plus costs.

Respondent contends that petitioner lacks standing to bring the instant action because he is not a resident of the district. Respondent also contends that petitioner has not demonstrated any wilful violation or neglect of duty by respondent board. Respondent notes that the Commissioner does not have jurisdiction to address petitioner's Open Meetings Law allegations, civil rights violations, nor his request for compensatory damages.

Prior to considering the merits, I must address the procedural issue. Respondent raises the affirmative defense that petitioner is not a resident of the district and lacks standing to bring this action. Because respondent had reason to believe that petitioner was no longer a resident of the district, it hired a private investigator to explore petitioner's allegations of residence. Petitioner asserts that he is the owner of real property in the district, that his Department of Motor Vehicles information lists his address in respondent's district and that he exercised his right to vote in the respondent's district election on April 29, 1992. He contends that the investigative report concerning his residency is not sufficient evidence that he does not reside in the district.

Respondent alleges that petitioner's children were educated

within the East Islip Union Free School District, and that petitioner's spouse is employed within respondent's district and resides in East Islip. The investigative report indicated that petitioner spent considerable time at the East Islip address and appears to reside there. The most persuasive piece of evidence proffered by respondent is the investigator's discussions with the individual who resides at petitioner's Central Islip address, who stated that the petitioner was his landlord who came to collect the rent.

The question of residence is one of fact, and despite petitioner's assertions that he is a resident of respondent's district, the record before me provides a basis to conclude that petitioner no longer resides in Central Islip Union Free School District (Appeal of Roy, 31 Ed Dept Rep 497; Appeal of Lavelle, 28 id. 189). While it appears that petitioner maintains certain documents of identification listing the Central Islip address for purposes of asserting that location as his legal residence, his actions indicate otherwise. Petitioner offers inadequate proof to rebut the evidence presented by respondent's investigative report. I therefore find that petitioner lacks standing to bring this application, since he is not a resident of respondent's district (Appeal of LaCorte, 29 Ed Dept Rep 170; Matter of Jersey and Carrol, 19 id. 162; Matter of Gormley, 15 id. 160).

The application is 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 wilful violation or neglect of duty under the law (Education Law '306(1); Application of Gmelch, 32 Ed Dept Rep ____; Decision No. 12794, September 2, 1992; Matter of Legatos, 23 id. 10). The record indicates that, upon realizing that the proposition on board size should have been included in the annual meeting notice, the district clerk immediately amended the notice to include the petitioner's proposition. Although the notice of the annual meeting was not published forty-five days prior to the meeting, as required by Education Law '2003(1), such failure has no relevance to the relief requested in this application.

In any event, pursuant to Education Law '2010, the proceedings of a district meeting are not invalidated by want of due notice unless the omission of notice was wilful and fraudulent. Technical failure to give proper notice is not a basis for invalidating election results if the notice given is reasonably calculated and effectively gives notice to the public of the election (Matter of Pendergast, 20 Ed Dept Rep 127). In this case, the amended notice was published on April 27, 1992 and gave thirty-six days notice to the public, since the annual meeting was held on June 2 and 3, 1992. It is clear from the record, despite petitioner's assertions of conspiracy and fraud, that such omission was not wilful or fraudulent in violation of Education Law '2010 and does not constitute grounds for removal under '306.

As to petitioner's claims concerning violations of the Open Meetings Law (Public Officers Law ''100 et seq.), I have held that such claims must be made 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 (Application of Eisner, 31 Ed Dept Rep 517; Appeal of Weaver, 28 id. 183; Matter of Lawson, 24 id. 132). Likewise, I have previously declined to address requests for compensatory damages in this forum (Appeal of Lyon, 30 Ed Dept Rep 169; Appeal of Sileo, 28 id. 313).

Regarding petitioner's civil rights claim, it must be dismissed because it is without support in the record.

I have also considered petitioner's remaining contentions and find them without merit.