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Decision No. 12,963

Application of PATRICK D. MARSHALL, LELAND RYAN, DARCY BOWEN, SUZAN D. LADUE, DOUGLAS F. WATSON, JOHN B. SIBLEY, JR. and SYDNEY L. BERRY for the removal of Scott Baker, Randall Luther, William Mealus, Charles Ripley, Maryanne Dicob, Robert Rice, Jr. and Neil Bousman as members of the board of education and Bonnie Sanderson as Superintendent of the Harrisville Central School District for neglect of duty.

Decision No. 12,963

(July 22, 1993)

Steven G. Munson, Esq., attorney for petitioner

Sanders D. Heller, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners seek an order removing seven board members and the Superintendent of the Harrisville Central School District ("respondents") for alleged negligence or incompetence. The application must be denied.

Petitioners allege incompetence, neglect of duty or illegal actions as the basis for respondents' removal. Some additional allegations involve: respondents' wrongful dismissal of a coach on September 30, 1992; a board member's vote on July 12, 1991 to reinstate his wife's position as a 1/2 time computer aide; a board member's vote on March 9, 1992 on pension benefits affecting his mother; boiler repairs made on September 1, 1992 without competitive bidding; using veiled threats and misinformation to persuade the voters to adopt the 1992-93 school budget; and misuse of Excellence in Teaching (EIT) funds from the 1991-92 and 1992-93 school years. Petitioners filed this application on November 16, 1992.

The appeal must be dismissed as defective on procedural grounds. The Commissioner's regulation provides that a petition:

shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

Many of petitioners' allegations are not sufficiently specific to enable respondents to prepare an adequate response. For example, petitioners contend that respondents engaged in a campaign of "half truths to cloud the fact of the fiscal mismanagement and have circulated rumors and veiled threats among the School District student body" to promote passage of the budget; that respondents engaged in "imprudent, unrestrained, and improper borrowing conjunction with the failure to implement any proper checks and balances...result[ing] in the School District being faced with unreasonable and illegally excessive debts and loans all coming due and payable in this fiscal year"; and that respondents failed to "properly account for the moneys expended and or transferred between accounts and have regularly and consistently failed to provide proper audit trails and safeguards for the moneys collected and the funds expended..." These general broad based assertions, without more, effectively deprive respondents of any meaningful opportunity to respond (Appeal of Koller, 32 Ed Dept Rep 485). The petition is, therefore, dismissed. Moreover, the application is untimely. Commissioner's regulations require that an appeal be brought within 30 days after the making of the decision or the performance of the act complained of, provided that the Commissioner may excuse a delay in commencing an appeal for good cause (8 NYCRR 275.16). Petitioners' allegations involve incidents that occurred more than 30 days prior to the filing of their application. Petitioners claim, however, that they filed their application within 30 days of their discovery of the alleged improprieties. When the excuse for delay is not supported by the record, it must be rejected and the appeal deemed untimely (Appeal of Bosco, 32 Ed Dept Rep 554). This excuse is unsubstantiated, since the information petitioners obtained was a matter of public record. Therefore, petitioners' delay in filing cannot be excused and their application must be dismissed as untimely.

The application must be dismissed on the merits as well. Section 277.1 of the Commissioner's regulations requires that an application seeking removal of a school officer, set forth

the willful violation of law, neglect of duty, or willful disobedience of a decision, order or regulation of the commissioner charged against the officer and the facts by which it is established...[which] must be set forth with such certainty as to time, place and all other pertinent details, as to furnish the officer with precise information as to what he is expected to meet...

Education Law '306 authorizes the Commissioner of Education to remove a trustee or member of the board of education, or superintendent, for wilful violation or neglect of duty under the law (Education Law '306(1); Application of Steenrod, 32 Ed Dept Rep 490; Application of Sabuda, 31 id. 461). 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; Application of Steenrod, supra.; Appeal of Garnett, 32 Ed Dept Rep 91). Petitioners' allegations involving respondents' wrongful termination of a coach do not refute respondents' defense that the coach was not an employee of the district and that the athletic association is responsible for selecting people to officiate in their district. Moreover, petitioners have not provided sufficient evidence to establish that respondents exceeded the debt limit and purchased computers and copiers with EIT funds. Without facts supporting these allegations, the application must be denied.

Petitioners also raise several issues relating to conflicts of interest involving individual board members. The "conflicts" they allege, however, are not prohibited by law. Specifically, a board member's vote to reinstate a non-teaching position ultimately given to his spouse is not illegal. Article 18 of the General Municipal Law does not restrict board members from voting on their spouses' employment contracts (General Municipal Law '801; Appeal of Behuniak, 30 Ed Dept Rep 236).

Concerning the vote on pension benefits that affect a board member's mother, a board member is not considered to have a prohibited interest in her own continued "retiree" membership in the teacher's union (Matter of Samuels, 25 Ed Dept Rep 228). Therefore, there is no prohibition to voting on the benefits for retirees that coincidentally impact upon a board member's mother. Respondents should be cognizant, however, to avoid the appearance of impropriety in future votes.

The allegations of failure to bid repairs for the boiler in contravention of the General Municipal Law '103(1) were also unfounded since the record reflects that the repairs were under the monetary limit which requires competitive bidding. Therefore, no violation occurred. Although not required, respondents obtained at least three estimates before proceeding with the repairs.

Regarding the allegations about the use of misleading information to coerce voters to pass the school budget, petitioners appear to be seeking a declaratory ruling that the actions taken were improper. I do not issue declaratory rulings in appeals brought pursuant to Education Law '310 (Appeal of Heizman, 31 Ed Dept Rep 387; Appeal of a Child Suspected of Having a Handicapping Condition, 30 id. 316; Appeal of Richards, 25 id. 38). Furthermore, petitioners have not sustained their burden of proof, and, therefore, these allegations do not support petitioners' application for removal.

Finally, it is undisputed that although the EIT funds in question were accepted by the Harrisville Central Board of Education for the 1991-92 and 1992-93 school years, they were not distributed to the teachers by agreement of the Harrisville Teachers Association. Instead, the funds were placed in the school district's reserve funds with 35% to be paid to the eligible teachers by February 1994 and with the remaining 65% paid by May 1994. Education Law '3602(27) provides for apportionments to improve teacher salaries and in some instances fringe benefits upon negotiated terms and conditions for retention of pedagogical positions. Section 175.35(3) of the Commissioner's regulations specifies that the apportionment received by a school district shall be distributed to eligible teachers. The record reflects that although the negotiations were completed, the money was not distributed to the teachers due to a negotiated agreement with the teachers' union. Education Law '3602(27) requires school districts accepting EIT funds to negotiate with the teachers' union all salary increases funded with EIT funds. It follows, therefore, that a teachers' union may agree to delay receipt of the funds. Furthermore, when the statutory language does not prevent it, teachers may voluntarily waive their rights (Matter of Feinerman v. BOCES, et. al. 48 NY2d 492). Because teachers may waive a right so significant to their careers as tenure (see, Feinerman), and because Education Law '3602(27) does not prevent teachers from negotiating away even the receipt of EIT funds, there is no basis to find improper respondents' negotiated delay of the receipt of funds.

I have reviewed petitioners' other claims and find them without merit.

Regarding respondents' request for costs and attorney's fees, the Commissioner of Education lacks authority to award them in appeals brought pursuant to Education Law '310 (Appeal of Wood, 32 Ed Dept Rep 470; Appeal of Ingraham, 32 id. 191).