Decision No. 13,263

(September 16, 1994)

SOBOL, Commissioner.--Petitioner, Joseph L. Schofield, filed two separate petitions under Education Law '306 seeking the removal of first, two members, then, six members of Community School Board (CSB) #11 of the New York City School District for willful misconduct and neglect of duty. Petitioner subsequently filed a third petition under '306 seeking the removal of the superintendent of Community School District (CSD) #11. Because the appeals raise the same legal issues and some overlapping fact issues, they have been consolidated for decision. The appeals must be dismissed.

On October 4, 1993, petitioner served his first petition (administratively designated as petition #15297), seeking the removal of respondents Loretta Jones and Pearl Ginsberg as president and secretary, respectively, of CSB #11. Petitioner alleges that these respondents willfully neglected their duties, violated regulations of the Chancellor of the New York City Public Schools, and violated orders of the New York City Board of Education (BOE).

Specifically, petitioner alleges that respondents Jones and Ginsberg wilfully neglected their duties by failing for over 2 1/2 months to schedule and conduct a hearing on an appeal of a suspended student (Appeal of Kathy P.) in violation of Chancellor's Regulation A-440. That regulation requires resolution of an appeal within 15 days. The appeal was filed July 6, 1993, but as of the date of this petition, no action had been taken by respondents. Petitioner alleges that this willful neglect was symptomatic of a pattern of continuing neglect as demonstrated by the CSB's history of inaction in four other appeals or grievances which occurred during respondents' previous term of office (Appeal of Quincy H.; Matter of DiRosa v. Cordasco; Matter of Skinner v. Washington; Matter of Stephen Bennett).

In the second petition (administratively designated as petition #15354), served December 14, 1993, petitioner alleges that respondents Jones and Ginsberg, along with four other CSB #11 members, Bernard DiGregorio, Richard Dillard, James Kilkenny and Anthony Morante, willfully engaged in official misconduct, tampered with public records and physical evidence and neglected their duties in the course of issuing a decision on November 10, 1993 in the Appeal of Kathy P. Specifically, petitioner alleges that the six respondents permitted the superintendent to participate in the appeal of a superintendent's decision, voted to affirm the superintendent's suspension of Kathy P. even though they had direct knowledge that a tape of the original hearing had been destroyed, and concealed these improprieties in issuing the decision.

In the third petition (administratively designated as petition #15357), served December 21, 1993, petitioner alleges that the superintendent of CSD #11, Joseph J. Kovaly, willfully engaged in official misconduct by participating with the CSB in the appeal process in the Kathy P. case contrary to the BOE's directive, tampered with public records and physical evidence by substituting notes and recollections of his office for the required taped proceedings, neglected his duty by failing to preserve the tape of the original hearing and conspired with CSB #11 in denying Kathy P. her due process rights. Petitioner further alleges that respondent Kovaly's misconduct accrued a benefit to respondent by protecting his image during a pending contract renewal process.

Respondents raise numerous defenses. Respondents assert that all their actions were lawful. Respondent CSB #11 members also assert that in any event, the petitions fail to state a cause of action upon which relief may be granted because an officer may not be removed for alleged misconduct that took place during a prior term of office. All respondents assert that the Commissioner should decline to rule because these same issues are the subjects of appeals or grievances before the Chancellor or BOE. They further contend that petitioner is trying to short-cut the appeal process under Education Law '310 by bringing these issues to the Commissioner's attention before final administrative action has been taken. Respondents also claim that the petitions are untimely and that service of the petitions in the first appeal was defective. Respondent CSB members and respondent Kovaly claim that in the second and third appeals, petitioner lacks standing because Kathy P. is no longer in her mother's custody and is no longer a student in CSD #11. Finally, respondent CSB members and respondent Kovaly claim petitioner failed to join the CSB as a necessary party to the proceedings.

Before reviewing the merits, I will address several procedural issues. Respondents claim that service of the petition in the first appeal (#15297) was invalid because the petitioner himself attempted to serve respondents on September 20, 1993 in violation of '275.8 of the Commissioner's regulations. Section 275.8(a) requires personal service of the petition by any person not a party to the appeal over the age of 18 years. However, absent evidence to the contrary, it appears that service was subsequently perfected when a third party other than petitioner served respondent Ginsberg on October 4 and respondent Jones on October 6, 1993. Since respondents claim no prejudice from being served on the later date, however, there is no reason to dismiss on that basis.

Section 275.16 of the Commissioner's regulations requires that an appeal to the Commissioner be instituted within 30 days from the making of the decision or the performance of the act complained of. Section 275.16 is applicable to proceedings for removal from office under Part 277 of the Commissioner's regulations (Application of Quinones, 25 Ed Dept Rep 497). Respondents Jones and Ginsberg claim that the first petition is untimely because petitioner challenged alleged acts of misconduct in matters which were before the former CSB prior to the expiration of its term on June 30, 1993. Since the petition was not filed until October, respondents claim that the petition was filed well beyond the 30 day time limitation.

However, as petitioner stated in his reply, his claim in the first petition pertains solely to respondents Ginsberg and Jones' neglect of duty regarding the Appeal of Kathy P., which was filed on July 6, 1993. The four other appeals and grievances were discussed in the petition only to illustrate the CSB's continuing history of neglect, and are not the subject of the petition. To the extent that petitioner complains of the continuing inaction and neglect of the CSB following Kathy P.'s appeal of her suspension on July 6, I find the petition to be timely (Appeal of a Student with a Disability, 33 Ed Dept Rep 101).

Respondent CSB members and Kovaly also dispute the timeliness of the second and third petitions (Nos. 15354 and 15357), because they were filed on December 14 and December 21, 1993 respectively, more than 30 days after the decision in the Appeal of Kathy P. was rendered on November 9, 1993. However, petitioner is not appealing the outcome of the CSB's decision in the Kathy P. case in this forum. (I note that the CSB's decision was properly appealed to the BOE on November 19, 1993.) Rather, petitioner is challenging the alleged misconduct of respondent Kovaly and the CSB in reaching that decision. Since petitioner's claim that he did not have evidence of that alleged misconduct until December 4, 1993 is not disputed by respondents, and the petition was served within 30 days of the discovery of the alleged misconduct, I find that the petition is timely (Application of Mody, 30 Ed Dept Rep 402; Application of Board of Education of City School District of City of New York, 28 id. 451).

With regard to the merits of the petitions, pursuant to Education Law '306, a member of a board of education may be removed if petitioner demonstrates that the board member engaged in a willful violation or neglect of duty, or willful disobedience of any decision, rule or regulation of the Regents or the Commissioner of Education (Application of Steenrod, 32 Ed Dept Rep 490; Application of Sabuda and Chudzik, 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).

Section 277.1 of the Commissioner's regulations requires that an application seeking the removal of a school officer set forth

Before the Commissioner of Education will remove a member of a board of education, it must be established that the individual has committed a willful violation of law or neglect of duty (Application of Scala, 31 Ed Dept Rep 159; Matter of Hunt, et al., 23 id. 296; Matter of Sterling, 23 id. 294). To be considered willful, the board member's actions must have been intentionally done with a wrongful purpose to disregard a lawful duty or violate a legal requirement (People v. Skinner, 37 App Div 44, aff'd 159 NY 162 (1899); Appeal of Eva B., 30 Ed Dept Rep 409; Application of Mody and Casey, 30 id. 402; Application of Cotroneo, 29 id. 421; Application of Cox, 27 id. 124). Petitioner has failed to meet that burden.

To the extent that respondents may have neglected their duties, petitioner has not proved that respondents intentionally acted with a wrongful purpose to disregard those duties. In the first petition, petitioner sought the removal of respondents Ginsberg and Jones based on their alleged misconduct and failure to take action on the Appeal of Kathy P. The CSB, including respondents, ultimately rendered a decision in that case on November 9, 1993. Consequently, respondents did not disregard their duty to render a decision. Accordingly, petitioner has failed to sustain his burden in the first petition.

Subsequent to the filing of the second petition on December 14, 1993, the BOE rendered a decision on February 10, 1994 in the Kathy P. case. The BOE sustained Kathy P.'s appeal and ordered the expungement of her record because the CSB had improperly issued its decision despite the lack of a taped or verbatim record of the original suspension hearing and other procedural defects. The BOE also directed the Chancellor to appoint a person or office to monitor future suspension and CSB appeal proceedings because of the continual failure of CSD #11 and the CSB to conduct those hearings in compliance with the Chancellor's regulations. Petitioner's claims in the second petition are bolstered by the BOE's February 10, 1994 decision and the BOE's recognition of the CSB's problems in managing its appeals. I am also concerned about what appears to be an emerging pattern of mismanagement by CSB. However, while respondents' actions have been far from efficacious, petitioner has nonetheless failed to sustain his burden of proof under Education Law '306 that respondent CSB members willfully neglected their duties in issuing the Kathy P. decision.

Regarding the third petition (No. 15357), petitioner conceded in his reply that respondent Kovaly's participation in the appeal hearing may not have been willful, but merely oversight. Petitioner has similarly failed to sustain his burden of proving that respondent Kovaly's other actions met the exacting standard of willfulness under Education Law '306.

I have considered the parties' remaining contentions. However, because I am dismissing the appeals on the merits pursuant to '306, I need not address those contentions. I note that subsequent to the filing of the first two petitions, the four other CSB cases discussed by petitioner have been resolved by either the Chancellor or the BOE. In all but one case, the resolution was against the CSB. Both parties discussed these cases in elaborate detail. However, since neither party has appealed those decisions under Education Law '310, I need not address them.

Finally, I note that in October 1993, the Office of Legal Services conducted a training session with all CSB members and the superintendent regarding CSB #11's responsibilities under Chancellor's Regulation A-440. Following that training, CSB #11 adopted an amended and upgraded conduct and discipline code. I

expect that CSB #11 and the superintendent will now strictly adhere in all aspects to the requirements of the Chancellor's regulations and the conduct and discipline code so that no allegations of neglect will be forthcoming in the future.

THE APPEALS ARE DISMISSED.

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