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Decision No. 13,554

Appeal of MARY F. MAREK from action of the Board of Education of the Hauppauge Union Free School District regarding board irregularities.

Decision No. 13,554

(February 6, 1996)

Cahn Wishod & Lamb, LLP, attorneys for respondent, Robert H. Cohen, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals various actions of the Board of Education of the Hauppauge Union Free School District ("respondent"). The appeal must be dismissed.

Petitioner, an unsuccessful candidate in respondent's 1995 board election, alleges that the board has failed to follow district policies in various instances. Her claim consists of several specific examples of alleged violations. First, petitioner alleges that respondent failed to investigate anonymous campaign flyers, inconsistent with its goals for gaining community confidence. Second, petitioner asserts that records regarding a board member's health insurance were missing, in violation of respondent's fiscal accounting and reporting policy. Third, petitioner contends that a district practice which allows employees to take a personal day to work on school district elections, but not as a substitute, violates respondent's equal opportunity policy. Fourth, petitioner alleges that the minutes of the board failed to include concerns she raised during board meetings, and that no minutes exist for executive sessions during which actions were taken, contrary to respondent's policies concerning those matters. Finally, petitioner claims that respondent allowed a district employee to notarize documents improperly and accepted documents which were notarized illegally.

Respondent raises a number of defenses, including the Commissioner's lack of jurisdiction with regard to allegations concerning meeting minutes and notarizations, and petitioner's failure to state a proper claim or seek an appropriate remedy. With respect to the specific allegations, respondent contends that it is currently conducting an investigation of the missing insurance records; that, although not illegal, it is reconsidering its practice of allowing district employees to use personal days for election duty; and that on the advice of counsel, it decided not to investigate the anonymous campaign flyers due to the cost of such an investigation and the unlikelihood that such an effort would successfully uncover proof of wrongdoing.

To the extent that petitioner's allegations concern board meeting minutes and executive session minutes, they are governed by the Open Meetings Law and I lack jurisdiction to decide those claims. The appropriate forum for addressing a violation of the Open Meetings Law is the Supreme Court of the State of New York (Public Officers Law '107; Appeal of Nolan, 35 Ed Dept Rep 139). Similarly, I lack jurisdiction over petitioner's allegations concerning improper notarization. Notaries public are under the exclusive jurisdiction of the Secretary of State (Executive Law '130).

Petitioner's remaining claims must also be dismissed. Section 275.10 of the Commissioner's regulations requires a "petition [to] contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." That is, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Nash, 35 Ed Dept Rep ___, Decision No. 13,516 dated November 15, 1995); Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327). The petition "shall further contain a demand for the relief to which the petitioner deems himself entitled" (8 NYCRR '275.10).

The petition in this appeal, containing 22 pages, 62 exhibits, and many rhetorical questions, is neither clear nor concise. Although petitioner provides detailed documentation supporting her allegations, she fails to demonstrate that these allegations, even if true, form a legal basis for relief. Rather, in her reply, she states that there is no legal basis or precedent for the Commissioner to direct a board to follow its own policies. Furthermore, it is not completely clear what relief petitioner is requesting. Initially, she asks me to investigate the board; later, she lists six points on which she asks me to advise the board, and in her reply she states that she simply wants me to force the board to follow its own policies.

Precedent does exist for the Commissioner to enforce school district policy where it has been established that a board violated district policy (Appeal of Joannides, 32 Ed Dept Rep 278; Appeal of Brenner, 28 id. 402). However, the policies on which petitioner relies are general in nature, and petitioner has not established a violation to warrant my interference. Education Law '1709(3) authorizes a board of education to manage and administer the affairs of the school district. In this case, the board exercised its judgment in carrying out its administrative duties and the explanations the board provides for its actions are reasonable. Although the Commissioner has broad powers and may substitute his judgment for that of the individuals or boards whose action he is reviewing (Matter of Board of Educ. v. Allen, 6 NY2d 127), I see no reason to do so in this case.