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Decision No. 12,882

Appeal of PATRICIA A. FRIEDMAN from action of the Board of Education of the Franklin Square Union Free School District, and Terry Spano, Robert Higgins, Gary Smith and Angelo Puleo, trustees, regarding her removal as a member of the Board of Education.

Decision No. 12,882

(January 29, 1993)

Behrens, Loew & Cullen, Esqs., attorneys for respondents, William M. Cullen, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges her removal by respondents from the Board of Education of the Franklin Square Union Free School District for alleged official misconduct. She also seeks removal of respondent board's trustees. The appeal must be dismissed.

Petitioner was elected president of the Franklin Square Union Free School District Board of Education ("respondent") in July 1991. In March 1992, respondent rescinded petitioner's election on the grounds that she was not a resident of the district. On April 3, 1992, respondent brought charges against petitioner for official misconduct pursuant to Education Law '1709(18). A hearing was commenced on April 29, 1992. The hearing officer found that petitioner was not a resident of the district and recommended her removal. Respondent adopted the hearing officer's recommendation and removed petitioner on June 16, 1992. Petitioner, nonetheless, submitted a petition to run in the June election.

Petitioner also commenced two separate proceedings pursuant to Article 78 of the Civil Practice Law and Rules (CPLR) by Order to Show Cause to invalidate her removal. Both were dismissed (Matter of Friedman, Supreme Court, Nassau County, April 28, 1992, Levitt, H. and June 8, 1992, Levitt, H.). In a third proceeding, petitioner also challenged respondent's authority to remove her under Education Law '1709(18). By order entered July 6, 1992, the court dismissed that petition as well, and upheld respondent's authority to conduct the hearing that resulted in petitioner's removal (Matter of Friedman, Supreme Court, Nassau County, July 6, 1992, Goldstein, J.).

Petitioner raises numerous claims relating to respondent's authority to pursue an investigation and initiate removal proceedings. Anticipating that respondent would also seek to remove her name from the ballot and deny her the right to vote in the June 1992 election, petitioner also seeks an order barring such action. Petitioner also alleges violations of the Municipal Law as well as various provisions of respondent's code of ethics. In addition, she seeks an order to have the individual trustees of the board of education bear all costs relating to her removal. She also seeks their removal.

Respondents allege that petitioner failed to serve personally the petition as required by Commissioner's regulations. Regarding the merits, respondents contend that petitioner's removal from office was proper. Respondents also argue that since petitioner sought relief to permanently enjoin them from removing her from office in State Supreme Court, she is barred from raising the same claims before the Commissioner. Respondents further contend that petitioner failed to allege any misconduct on the part of individual board members to warrant their removal. Accordingly, respondents request that I issue a certificate of good faith pursuant to Education Law '3811.

Prior to addressing the merits, I will address the procedural issues. Respondents allege that since petitioner previously challenged her removal in State Supreme Court, she is barred from seeking the same relief in an appeal under Education Law '310. The record indicates that petitioner unsuccessfully sought in Supreme Court the same relief she seeks here -- namely, a determination that respondent is barred from removing her from office. Having litigated her claims elsewhere and having received an adverse determination on whether respondent improperly removed her from office, the doctrine of resjudicata bars petitioner from relitigating those issues here (Appeal of Tobin, 30 Ed Dept Rep 315; Appeal of Roth, 26 id. 165; Matter of Monaco, 24 id. 348). Petitioner's appeal must, therefore, be dismissed.

Petitioner's request for an order allowing her name to appear as a candidate in the district's June 10, 1992 annual meeting and restraining respondent from interfering with her right to vote at the election is moot. Notably, petitioner's name remained on the ballot and, upon challenge, she declined to declare her eligibility to vote as she was entitled to do pursuant to Education Law '2019.

I would also dismiss this appeal on the merits. Education Law '1709(18) empowers a board of education to remove a member for "official misconduct" upon proper notice and opportunity for a hearing. Nothing in the record indicates that petitioner failed to receive proper notice or was otherwise deprived of a fair hearing. Although petitioner alleges improprieties, she presents no evidence to support her claims. To the contrary, the record indicates that prior to petitioner's removal, a hearing was held wherein a hearing officer concluded, based on the evidence before him, that petitioner was not a resident of the district. Accordingly, respondent's determination that petitioner was unauthorized to serve on the board of education was proper.

Petitioner's application for removal of respondent trustees must also be denied. Education Law '306 authorizes the Commissioner of Education to remove a member of a board of education for wilful violation of law, neglect of duty or for wilful disobeyance of a decision, order, rule or regulation of the Regents or of the Commissioner of Education (Application of Shader, 31 Ed Dept Rep 252; Application of Northup, 25 id. 161). In such cases, the petitioner bears the burden of establishing the facts upon which relief is sought (8 NYCRR '275.10; Application of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284). Petitioner offers conclusory statements that respondent trustees violated various provisions of the Municipal Law and otherwise improperly handled her removal from office. Upon review of the record, I find no evidence that either the board, as a whole, or individual trustees, acted improperly. In light of the foregoing, petitioner has not met her burden to establish grounds for the removal of certain trustees.

Finally, respondents request that I issue a certification in accordance with Education Law '3811. That statute requires that before a school district can pay for a board member's representation, a court or the Commissioner of Education must certify that the board member appeared to have exercised his powers and performed his duties in good faith. Although petitioner alleges that respondents should not be granted a certificate of good faith, she makes the same arguments for denying the certificate as she raised on the merits. Having found no evidence that respondents engaged in improper conduct, I hereby certify the apparent good faith of the individual trustees regarding the allegations set forth in this petition (Application of Sabuda and Chudzik, 31 Ed Dept Rep 461).

I have considered petitioner's other claims and find them without merit.