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Decision No. 13,447

Application of STEWART S. LILKER for the removal of Richard C. Bonen, Superintendent, Daniel C. Romano, Director of School Facilities, Maintenance and Operations, and Calvel Venzen, Richard Ament, Dorothy Fox, and Debbie Weber, as members of the Board of Education of the Freeport Union Free School District.

Decision No. 13,447

(July 10, 1995)

Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, Esqs.,

attorneys for respondents, Carol M. Hoffman, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner seeks an order removing four of the five members of the Board of Education of the Freeport Union Free School District, together with the Superintendent and the Director of School Facilities, Maintenance and Operations, because of their actions regarding a parcel of real property inherited from a district resident. The appeal must be dismissed.

On January 25, 1993, Jeannette Kaskell, a resident of respondent district, died. Her will was admitted to probate on March 21, 1994. Under the terms of her will, Ms. Kaskell left her residuary estate, consisting of a one-family home located at 209 East Dean Street, Freeport, worth approximately $140,000, and an additional sum of over $83,000 ". . . to FREEPORT HIGH SCHOOL of Freeport, New York to set up a fund known as the JEANNETTE KASKELL Achievement Award, to award $1,000.00 every year to the graduating student with the highest scholastic average for as long as any residual estate shall last." The district became aware of this bequest during 1993, and at the end of 1993 the superintendent made a request to the executor to transfer the real property to the district "in kind" rather than liquidating it and paying over the proceeds. The district was aware at this point that only approximately $30,000 would be necessary to fund a single award of $1,000 each year to the graduating senior with the highest scholastic average.

The executor of the estate had no objection to transferring the property in kind, and on or about June 1, 1994, he transferred possession of the property to the superintendent. The superintendent then claims that district officials telephoned the State Education Department's Bureau of Facilities Planning to inquire about the requirements for remodeling the property into office space for the district. During the months of June and early July 1994, substantial work was done on the building, including the gutting of much of the interior, the removal of interior walls, and other alterations. During that time, petitioner and others expressed serious disagreement with the initiation and continuation of this work, particularly since there was no evidence that the State Education Department had approved the project. The record indicates that not until July 14, 1994, did respondent district formally request that the State Education Department assign a project number and a project manager, which was done on July 22. In the meantime, it appears that work on the project had stopped, apparently because of substantial opposition by neighbors and other district residents, and that by July 28, 1994, the project had been at least informally abandoned. According to Mr. Romano, the Director of School Facilities, Maintenance and Operations, the district's architect contacted the State Education Department on or about August 10, 1994, and advised that the project had been terminated. It further appears that a letter from the district's architect dated November 4, 1994, formally advised the Department that the project would not go forward and requested cancellation of the project number. A few days later, the district returned possession of the gutted structure to the executor's attorney and requested that he sell it "as is."

Petitioner contends that the superintendent, the Director of School Facilities, Maintenance and Operations, and the four board members he seeks to remove are guilty of willful disobedience of a variety of statutes, regulations, and local policies, including Education Law ''408, 1709, and 1711; 8 NYCRR '155.2(a); and local policies 2111.3 and 9321.

Respondents generally deny the charges set forth by petitioner, and raise a number of affirmative defenses including untimeliness, failure to join the fifth board member as a necessary party, and failure to state a claim. Respondents also challenge the application of Education Law '306 to the Director of School Facilities, Maintenance and Operations, and dispute the relevance of Education Law '408 and 8 NYCRR '155.2(a).

The appeal is untimely and must be dismissed. All of the actions and determinations complained of in the petition occurred during the months of June and July 1994. This appeal was not commenced until December 5, 6, and 7, 1994. The petition contains a statement that petitioner received a response to his Freedom of Information Law request for correspondence from the district on November 7, 1994, and it is clear that the appeal was commenced within 30 days after that date.

However, the actions and determinations of which petitioner complains were matters of public record and were well known to petitioner at the time they happened. Accordingly, petitioner was not prevented from commencing a timely appeal (Application of Marshall, 33 Ed Dept Rep 26; Appeal of Bosco, 32 id. 554). In opposition, petitioner has cited Application of Mody, 30 Ed Dept Rep 402, and Application of the Bd. of Educ., City School District of the City of New York, 28 id. 451. Those cases are readily distinguishable. In each case, the alleged wrongdoing was not a matter of public record and was not readily discoverable by the petitioner. I find that the facts in this application are much more similar to Marshall and Bosco, and for that reason I dismiss.

Although I am constrained to dismiss the appeal for untimeliness, I must comment on some of the actions taken by respondents. I am concerned that respondents would proceed with very substantial construction work without the approval of the Bureau of Facilities Planning of the State Education Department, and I caution them with respect to any such projects in the future.

I am even more deeply concerned that respondents took it upon themselves to interpret the Kaskell will in such a way that only approximately $30,000 out of the total bequest of approximately $223,000 would have been devoted to the awarding of a prize each year to a graduating student, while the district used the rest for its own construction project. The record indicates that a construction proceeding was initiated in the Nassau County Surrogate's Court on or about August 10, 1994, and that on January 5, 1995, the Surrogate rendered a decision that the entire residuary estate must be used for the awards, that each award must be increased to $2,000, and that awards must be made each year to as many graduating students as income permits, based upon their academic averages. As a result of this interpretation, the action of respondents in gutting the real property, then reversing their prior course and requesting the executor to liquidate it in its "as is" condition, may have substantially diminished the value of the residuary estate which the district holds only as trustee. The actions of the respondents in this matter open them to considerable, and justifiable, criticism.