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Decision No. 13,368

Application of TANYA MC DOUGALD for the removal of Dan Hester, Betty Cross and Frank Ashby as members of the Board of Education of the Hempstead Union Free School District.

Decision No. 13,368

(March 8, 1995)

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondents, Gilbert Henoch, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks removal of three members of the Board of Education of the Hempstead Union Free School District. The application must be denied.

Petitioner asserts that respondents are using their positions as board members to require the district to employ individuals who have supported respondents' election. Petitioner also asserts that respondents discontinued a swim program because the parents of the children who participate in the program did not support respondents' candidacy. Respondents deny those allegations.

Education Law '306(1) provides that the Commissioner of Education may remove from office a member of the board of education when

... it shall be proved to his satisfaction that any ... member of a board of education, ... has been guilty of any wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in state funds, or wilfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education, ...

In an appeal to the Commissioner, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Nanni, et al., 23 Ed Dept Rep 444). Moreover, the petitioner must establish the facts upon which he or she relies by presenting clear and convincing evidence (8 NYCRR 275.10; Appeal of Singh, 30 Ed Dept Rep 284; Appeal of Keiling, 25 id. 122). Based upon the record before me, petitioner has failed to meet that burden.

My review of the record reveals no evidence to support petitioner's contention that respondents are improperly using their office to require the employment of individuals in return for political support. The record merely contains bare assertions by petitioner, which are denied by the respondents. Petitioner's contention that respondents discontinued a swim program for political reasons is also not supported by any hard facts. Moreover, the record merely discloses that on September 13, 1994, the Board of Education of the Hempstead Union Free School District adopted a policy establishing rules regarding the use of the high school swimming pool by nonstudent residents and nonresidents. Accordingly, petitioner has not presented any evidence of wrongdoing by respondents, and there is no basis to order respondents' removal.

Petitioner also contends that respondents are guilty of violating the Open Meetings Law. Respondents deny that allegation. In any event, the Commissioner of Education lacks jurisdiction to address Open Meetings Law claims. The proper forum for addressing such claims is State Supreme Court (Public Officers Law '107; Appeal of Martin, 32 Ed Dept Rep 381; Application of Eisner, 31 id. 517).

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