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Decision No. 13,140

Appeal of FRANK BRACA, et al., from action of the Board of Education of the Greenburgh Central School District regarding a special district meeting.

Appeal of FRANK BRACA, et al., from action of Numa Rousseve, President of the Board of Education of the Greenburgh Central School District, regarding a special district meeting.

Appeal of FRANK BRACA, et al., from action of Dr. Anthony Mazzullo, Superintendent of the Greenburgh Central School District regarding a special district meeting.

Appeal of FRANK BRACA, et al., from action of Arnold Green, attorney for the Board of Education of the Greenburgh Central School District regarding a special district meeting.

Decision No. 13,140

(March 31, 1994)

Bacharach, Green & Bass, P.C., attorneys for respondents, Giacchino J. Russo, Esq., of counsel

SOBOL, Commissioner.--Petitioners are registered voters, taxpayers and residents of the Greenburgh Central School District. They have commenced two separate but related appeals and have served and filed a total of four distinct but similar petitions. Because both appeals and all four petitions allege virtually identical facts and involve similar issues of law, they are consolidated for decision. The appeals must be dismissed.

In May 1993, respondent district adopted a contingency budget. In July, the board of education voted to place a proposition before the voters on September 8, 1993. The proposition sought to add certain non-contingent items to the district's budget. Voting began at 7:00 a.m. on September 8. At approximately 5:30 p.m., some or all of the petitioners distributed leaflets urging a no vote on the proposition. This took place in a parking lot, which petitioners claim was more than 150 feet from the entrance to the polling place, but was clearly on district property. While handing out leaflets, petitioners were approached by respondents Green and Rousseve. It is unclear whether respondents Green and Rousseve asked petitioners to stop or threatened them with criminal prosecution. Both sides agree, however, that petitioners stopped for some period of time. Thereafter, a police officer, apparently called by respondent Rousseve, arrived, talked with the parties, refused to take any action and left. Petitioners then resumed handing out leaflets.

At approximately 7:00 p.m., a second incident occurred. Custodians employed by respondent board attempted to place barricades at the entrance to the parking lot where petitioners were located for the purpose of diverting traffic to another nearby parking lot. Petitioners do not allege that any of the individual respondents were present but claim that the custodians were acting under the direction of one or more members of the board of education.

Petitioners complain about a third matter, a sign painted on a sidewalk within 150 feet of the entrance to the polling place. This sign urged a yes vote on the proposition. Petitioners allege that some or all of respondents were responsible for placing the sign or that they were derelict in not having it removed.

Petitioners allege that these actions amounted to an attempt, by the board of education in general and the three named respondents in particular, to curtail petitioners' constitutional rights to free speech and freedom of assembly and to influence the outcome of the election. Petitioners request that I set aside the election and order a new vote. They also request that I remove the three individual respondents from their respective offices and that I remove any other board members who may have been involved in some way in these incidents.

Respondents deny any wrongdoing and assert numerous procedural defenses, including but not limited to lack of jurisdiction, defective service of process, defects in the notice of petition and petitions, and failure to allege or prove that any irregularities, which may have occurred, had any effect on the outcome of the election.

To understand the procedural arguments, it is necessary to note that there are two technically separate appeals before me. The first, administratively designated No. 15296, consists of a single notice of petition and petition which name only the board of education as respondent. This petition was served on the district clerk at a meeting of the board on October 5, 1993 and seeks to annul the vote and to remove any board member involved in the three incidents described above. This appeal does not contain the special notice provision required by 8 NYCRR 277.1 for removal proceedings, nor was it served on any board member individually.

The second appeal, administratively designated as No. 15301, consists of three notices of petition and petitions. Each set of pleadings names only one of the three individual respondents. The petitions directed to respondents Rousseve and Mazzullo were served on them personally at the board meeting on October 5, 1993. The other petition, directed to respondent Green, was served on that same date on the district clerk because respondent Green was absent from the board meeting. These papers contain the language required by '277.1.

As a preliminary procedural matter, petitioners seek to raise new issues in their reply and reply affidavits which were not included in the petition. Sections 275.3 and 275.14 of the Regulations of the Commissioner of Education set forth the scope of a reply under Education Law 310 and allow a response only to affirmative defenses and new material raised in an answer. The reply does not provide an opportunity to raise new grounds for relief (Appeal of Eastman Kodak Company, 32 Ed Dept Rep 575; Appeal of Alexandreena D., 30 id. 203; Appeal of Santicola, 29 id. 213), or to buttress allegations in the petitions or add assertions which should have been included therein (Appeal of Eastman Kodak Company, supra; Appeal of Brousseau, 31 Ed Dept Rep 155; Appeal of Barbara P., et al., 30 id. 198; Appeal of Pronin, 27 id. 203). Therefore, I will not consider those portions of the replies that raise new issues.

The appeal against respondent Green must be dismissed. I conclude that Mr. Green was not personally served with the petition naming him as a respondent, even though the district clerk willingly signed the receipt on his behalf. Even if Mr. Green had been properly served, however, a school attorney may not be removed by the Commissioner pursuant to Education Law '306 (Matter of Rojek and Spadone, 24 Ed Dept Rep 434; Matter of Riendeau, 23 id. 487; Matter of Cahill, 23 id. 427; Matter of McGinley, 23 id. 350; Matter of Sterling, 23 id. 294).

The appeal against respondent Mazzullo must also be dismissed. There is no allegation in any petition specifying respondent Mazzullo's conduct or even that he was present during any of the three incidents described above. Although petitioners have improperly tried to supplement the petition directed to respondent Mazzullo in their reply, I find that the petition fails to state a cause of action with respect to respondent Mazzullo.

Appeal No. 15296 to remove the board in general must be dismissed also. To remove a board member, the petition must contain the language required by '277.1, it must name the board member or members to be removed individually and the board member or members must be served individually (Appeal of Como, 30 Ed Dept Rep 214; Appeal of Danison, 30 id. 16; Appeal of Healy, 29 id. 391; Appeal of Monaco, 24 id. 349). The petition and service used in appeal No. 15296 falls short of the requirements in all respects.

The appeal against respondent Rousseve, however, cannot be dismissed on jurisdictional grounds. It contains the language required by '277.1, was properly served and contains allegations that he wilfully engaged in actions to deny petitioners' constitutional rights to free speech and peaceable assembly.

Regarding the merits of the appeal against respondent Rousseve, 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). 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). In this case, petitioners have failed to meet that burden.

Respondent Rousseve's participation in two of the incidents may be disposed of quickly. With respect to the placement of barricades, the petition alleges that the custodians were acting "under instructions from the Board of Education." Rousseve denies giving any directions to any of the custodians, and petitioners present no proof that he did so. Indeed, it is unclear whether Rousseve was even present during the placement of the barricades. With respect to the sign painted on the walk, the petition is unclear as to whether Rousseve is charged with placing the painted sign on the sidewalk or allowing it to remain within 150 feet of the polling place. Rousseve denies any knowledge of the sign. Petitioners have failed to produce any evidence that he did have knowledge of the sign, nor have they produced any proof that they brought the sign to his attention or demanded that he remove it.

With respect to the incident involving the leaflets, petitioners claim that they were more than 150 feet from the entrance to the school gym where the election was being conducted when respondent Rousseve told them they were guilty of criminal trespass and that the police were being called. Rousseve claims that he simply asked petitioners to stop and that they did so. The parties differ as to how long the leafletting ceased. The incident clearly occurred on school district property and apparently ended when a police officer arrived and declined to take any action against petitioners, based upon the belief of his police chief that petitioners' conduct was not criminal.

The record indicates that the question of electioneering on school property beyond the 100 foot limit set by Education Law '2031-a had arisen on prior occasions during 1993. Respondent Green's affidavit indicates that he was asked about that issue on several occasions by board members and gave his opinion that electioneering could not be done on school property without the board's permission. Respondent Rousseve indicates that he was aware of Green's advice on previous occasions and that he confirmed that advice with Green prior to confronting petitioners. Both Rousseve and Green state under oath that Rousseve was acting on the advice of counsel.

Petitioners strongly disagree with Green's opinion as to the law on this topic and further argue that Rousseve could not have relied on Green's advice because Green merely happened to be present at the time of the incident. This argument, however, ignores the fact that Green had given the same legal opinion to the board, including Rousseve, several times during the year. In addition, according to Rousseve's affidavit, Green confirmed that opinion in a conversation not witnessed by petitioners just before the confrontation. I am persuaded that Rousseve did act upon the advice of counsel. When an individual reasonably relies on the advice of counsel, his or her conduct is not wilful for purposes of removal under Education Law '306 (Matter of Israel, 20 Ed Dept Rep 67; Matter of Gagliotti, 24 id. 402; Appeal of Cotroneo, 29 id. 421).

To annul the results of an election conducted under the Education Law, petitioners have the burden of showing that irregularities occurred and that those irregularities affected the outcome of the election (Matter of Boyes, et al., v. Allen, 59 Misc 2d 975, rev'd 32 AD2d 990, aff'd 26 NY2d 709; Matter of Schurman v. Goldstein, 257 AD 623; Matter of Coffee v. Commissioner, 62 Misc 2d 315; Matter of Riegler, et al., 16 Ed Dept Rep 256; Appeal of Blake, 27 id. 89; Appeal of Eagelfeld, et al., 33 id. 256). Petitioners argue that it is not necessary for them to demonstrate that the outcome of the election would have been different. While that may be true for purposes of trying to remove a board member or school officer for misconduct, it is not true with respect to an attempt to annul a vote. In this case, the proposition passed by more than 200 votes and petitioners have not shown that the outcome was affected by the alleged irregularities. Consequently, I must reject their request to annul the result of the election.