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Decision No. 13,130

Application of STANLEY MICHALSKI, et al. for the removal of Robert Feeney, Virginia Galgano, Heidi Beattie, Jayne Bushmann and Denise Haggerty as members of the Board of Education of the Middle Country Central School District.

Decision No. 13,130

(March 10, 1994)

Cahn, Wishod & Lamb, Esqs., attorneys for respondents, Eugene R. Barnosky and Joel M. Markowitz, Esqs., of counsel

SOBOL, Commissioner.--Petitioners have brought five applications seeking the removal of five board members of the Middle Country Central School District. Since the appeals involve identical issues, they have been consolidated for decision. The applications must be denied.

Each application seeks the removal of respondents from office for certain alleged illegal actions taken at the organizational meeting of the board held in July 1993, at a regular monthly meeting of the board held on August 16, 1993 and at a special meeting held on November 3, 1993. These applications were brought on November 15, 1993.

Before reviewing the merits of the applications, I must address the procedural issue of timeliness. Pursuant to '275.16 of the Regulations of the Commissioner of Education, an appeal to the Commissioner must be commenced within 30 days of the decision or act complained of. Failure to file a timely appeal may be excused by the Commissioner, in his sole discretion, for good cause shown on the face of the petition. In this case, respondents correctly point out that petitioners' applications, challenging actions taken in July 1993 and on August 16, 1993, are untimely since they were not commenced until November 15, 1993. Because petitioners offer no justification for the delay, the claims arising from actions taken in July 1993 and on August 16, 1993 are dismissed as untimely (Appeal of Wood, 32 Ed Dept Rep 470).

The applications must also be dismissed on the merits. Education Law '306 authorizes the Commissioner of Education to remove a school officer 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). "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, 73 AD 44, affd 159 NY 162; Application of Griffin, 31 Ed Dept Rep 221; Application of Gellatly, 30 id. 10). 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). Section 277.1 of the Regulations of the Commissioner of Education 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; . . .

Petitioners contend that respondents violated the Education Law by adjourning the annual organizational meeting from July 5, 1993 to July 12, 1993 "without a board resolution." The record indicates that five of the nine members of the board were unable to attend the meeting scheduled for July 5, 1993. Consequently, there was an insufficient number of board members at the meeting to constitute a quorum. The lack of a quorum capable of conducting district business clearly necessitated an adjournment. The meeting was subsequently held on July 12, 1993. Under such circumstances, I find that respondents are not guilty of violating any law. Moreover, there is no evidence that respondents brought about the postponement with the intention of willfully violating the law.

Petitioners also maintain that respondent Virginia Galgano should be removed for her alleged failure to comply with a court order and that the remaining respondents should be removed for failure to take affirmative steps to ensure that respondent Galgano complied with the order. The record indicates that just moments before the start of a regularly scheduled board meeting on August 16, 1993, respondent Galgano was handed an ex parte temporary restraining order signed by a Justice of the Supreme Court of Suffolk County. The order purported to prohibit respondent Galgano from taking any action as a member of the board until the return date of a motion for a preliminary injunction, ten days later. Having not seen the order before and being unaware of its consequences or that a proceeding had been commenced against her, respondent Galgano sought the advice of the board's attorney. Approximately one hour after the start of the meeting, Board President Robert Feeney contacted the attorney. She stated that she was not able to offer a legal opinion on the impact of the papers without having seen them. The attorney advised that the meeting proceed as usual and that she would review the papers the next day. Based on that advice, the meeting continued and respondent Galgano participated. The following day, the attorney reviewed the papers and advised the board to refrain from implementing any resolution in which respondent Galgano's vote was the deciding vote. That advice was followed. Subsequently, the temporary restraining order was declared "facially void" by Justice Newmark of the Supreme Court, Suffolk County. Justice Newmark held that since the restraining order was a nullity, respondent Galgano could not be punished for disobeying it. In light of Justice Newmark's decision, there is no basis to remove respondents from their positions for an alleged failure to comply with the order in question.

Petitioners also challenge certain actions taken at a special meeting on November 3, 1993. At that meeting, respondents elected to institute a proceeding before the Commissioner of Education, seeking the removal of another board member. Petitioners note that the board member in question was served with a notice of petition and petition minutes after the board voted to proceed with its appeal. Since the appeal papers were prepared in advance of the board authorizing the appeal, petitioners surmise that respondent Feeney acted illegally in unilaterally authorizing the school district attorney to expend monies in the preparation of the appeal papers without prior approval of such action by the board. However, petitioners' contentions are not supported by the record. The school attorney was aware that the board was contemplating such an appeal and that pursuant to 8 NYCRR 275.16, the appeal would have to be commenced no later than November 3, 1993. In light of the impending expiration of the time to commence the appeal, the school attorney prepared the notice of petition and petition before the November 3 meeting at her own financial risk. The record indicates that had the board declined to approve the commencement of the proceeding, the attorney was prepared to absorb the loss of compensation for time spent, and there would have been no expenditure of public funds. Accordingly, petitioners' contentions on this issue are dismissed.

Petitioners also contend that respondents violated board policies in connection with the November 3 meeting in that respondents voted twice to go into executive session, went into executive session to discuss "proposed" litigation rather than pending litigation and failed to include in the notice of the meeting the purpose thereof. Respondents deny those allegations. In any event, such technical irregularities do not establish that respondents are guilty of a wilful violation of law and cannot form a basis for their removal. A violation of a board of education by-law or policy, by itself, is simply not a basis for removing a board member from office pursuant to Education Law '306 (Application of Cox, 27 Ed Dept Rep 124; Application of Summerville, 27 id. 46; Application of McSweeney, 20 id. 397).

Petitioners also maintain that respondent Feeney, as board president, has repeatedly restricted members of the public from freely expressing themselves at board meetings. Petitioners do not cite any specific examples of such conduct. A board of education should, whenever possible, listen to responsible citizens' presentations on any matter under consideration. A board is also obligated to keep residents informed and to provide channels of communication through which residents may express their opinions (Matter of Thomas, 10 Ed Dept Rep 108). However, a board has the right to control the agenda at board meetings, and there is no statutory mandate that requires a board to permit public input at its meetings (Appeal of Martin, 32 Ed Dept Rep 381; Appeal of Wittneben, 31 id. 375).

Finally, I note that respondents have requested that I certify that they appear to have acted in good faith with respect to the exercise of their powers and the performance of their duties, for the purpose of obtaining reimbursement from the district for their legal expenses. In accordance with Education Law '3811, I certify that respondents appear to have acted in good faith.