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Decision No. 12,942

Application of NORMA SCHMUCKER for removal of Edward Moran and the Board of Education of the East Islip Union Free School District from their position as trustees of the Board of Education of the East Islip Union Free School District.

Decision No. 12,942

(June 8, 1993)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondents, John H. Gross, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks the removal from the Board of Education of the East Islip Union Free School District of Edward Moran ("Moran") and all other members of the board. The application must be denied.

In 1983, respondent board adopted a policy authorizing the use of district property by private individuals and groups. Pursuant to that policy, Moran requested and was granted the use of a district-owned truck, which he used during a 24-hour period for a non-school related activity. Petitioner then instituted this appeal seeking the removal of Moran and other "trustees seated at the time for allowing this action and policy to occur."

Before reviewing the merits of this appeal, it is necessary to address a procedural issue. Petitioner offers new allegations and exhibits in her reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR '275.3, '255.14). A reply is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (Appeal of Taber, et al., 32 Ed Dept Rep 346; Appeal of Mermelstein, et al., 30 id. 119). This pertains in particular to an application for removal, where specific notice of the charges is critical (8 NYCRR '277.1; Application of Sabuda, et al., 31 Ed Dept Rep 461; Application of Robert, 30 id. 378). Accordingly, I will not consider the new allegations and exhibits included in petitioner's reply.

With respect to the merits, Education Law '306 authorizes the Commissioner of Education to remove a member of a board of education who is guilty of any "wilful" violation of law. "Wilful" means that the underlying act must be one intentionally done with a wrongful purpose to disregard a lawful duty or violate a legal requirement (People v. Skinner, 37 AD 44, aff'd 159 NY 162; Application of Griffin, 31 Ed Dept Rep 221; Application of Gellatly, 30 id. 10). Petitioner bears the burden to establish the facts demonstrating wilfulness, as well as entitlement to the relief sought (8 NYCRR '275.10). In this case, petitioner has failed to meet that burden.

The record before me indicates that, upon commencement of this appeal, respondent board asked its attorneys to review the challenged policy. The attorneys subsequently informed the board that the policy might violate Article 8, section 1 of the New York State Constitution, which prohibits a gift or loan of public property to any individual or private entity. Based on this legal opinion, the superintendent of buildings and grounds calculated a reasonable value for Moran's use of the district truck, which amount was paid by Moran.

Although respondent board's policy of loaning its equipment for personal use and Moran's use of the truck pursuant to that policy violates Article 8, section 1 of the State Constitution, there is no indication that any of the respondents acted in wilful violation of the law. The fact that the board and Moran promptly acted to rectify the situation upon advice of counsel, is evidence that any violation of law was unintentional. Since petitioner has failed to establish otherwise, her application for removal is denied.

I have reviewed petitioner's other contentions and find them without merit.