Decision No. 13,735

(February 21, 1997)

MILLS, Commissioner.--Petitioner seeks respondent's removal as president and member of the Board of Education of the Wappingers Central School District pursuant to Education Law '306. The application must be denied.

Petitioner, a resident of respondent's school district, brings this appeal on behalf of herself and a class of seven other district residents. She alleges that while respondent was a member of the Wappingers Board of Education, he was aware of an unlawful agreement entered into between the superintendent of schools and the president of the Wappingers Congress of Teachers and that he participated in keeping the agreement secret.

Certain facts are undisputed. The Collective Bargaining Agreement for the period July 1, 1988 through June 30, 1992 between the Wappingers Central School District and the Wappingers Congress of Teachers provided that the Congress president would teach three periods per day if he/she were a secondary teacher and would act as a substitute three days per week if he/she were an elementary teacher. By memorandum of agreement dated February 14, 1995, the agreement was extended through June 30, 1998. The agreement was ratified by the Wappingers Congress of Teachers on March 1, 1995 and approved by the board of education on March 7, 1995. By memorandum dated March 8, 1995, entitled "side letter," Superintendent of Schools John G. Marmillo and Wappingers Congress of Teachers President Ronald L. Warman agreed that the president would be relieved of all teaching duties to conduct Congress business and that the Congress would reimburse the district in accordance with a formula based on 60 percent of the substitute pay rate. In December 1995, the Collective Bargaining Agreement was first published and made available to the public. At its February 26, 1996 meeting, the board discussed the "side letter" agreement and directed the superintendent to terminate it, which he did on February 27, 1995. Respondent was subsequently elected as president of the board of education. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on July 31, 1996.

Petitioner alleges that the "side letter" is an illegal document, that respondent knew it was illegal, that he kept it secret from at least six trustees, and that he allowed funds to be misappropriated pursuant to the agreement to pay the Congress president's salary. Petitioner argues that respondent is guilty of official misconduct and conspiracy to keep the illegal agreement secret, and that he is therefore unfit to serve as school board president. She asks that I remove respondent as president and member of the board and direct him to reimburse the district for attorney's fees incurred in his behalf.

Both sides raise procedural issues with respect to this application. Respondent also contends that petitioner fails to establish that she is entitled to the relief requested and that removal under Education Law '306 is inappropriate because there was no willful violation or neglect of duty.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). Petitioner commenced this appeal on July 8, 1996, sixteen months after the "side letter" agreement was entered into and more than four months after the agreement was publicly discussed at a board meeting and terminated. Petitioner argues that she did not file the appeal earlier because she was unaware of respondent's knowledge of the agreement. However, this excuse is not supported by the record. Petitioner included in her petition a February 28, 1996 newspaper article in which respondent confirmed his knowledge of the "side letter." Thus petitioner was aware of respondent's knowledge more than four months before this application was filed. When the excuse for delay is not supported by the record, it must be rejected and the appeal deemed untimely (Application of Marshall, et al., 33 Ed Dept Rep 26; Appeal of Bosco, et al., 32 id. 554). Petitioner also argues that she commenced this action within 30 days of respondent being elected board president. However, the standard under Education Law '306 is no different for the removal of officers than it is for board members. If petitioner had information sufficient to warrant the removal of an officer of the board, such information would have warranted that person's removal as a board member. Therefore, petitioner's delay in filing cannot be excused and her application must be dismissed as untimely.

Furthermore, petitioner has failed to establish facts sufficient to warrant removal of the board president pursuant to Education Law '306. In an appeal before the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR 275.10) and the burden of establishing the facts upon which he or she seeks relief (Appeal of Caldwell, 36 Ed Dept Rep ___, Decision No. 13729, dated January 8, 1997; Appeal of Marek, 35 Ed Dept Rep 314). Education Law '306 authorizes the Commissioner of Education to remove a member of the board of education for a willful violation or neglect of duty under the law (Education Law '306(1); Application of Cobler, 35 Ed Dept Rep 176 ; Application of Borges, 34 id. 459). To be considered willful, respondent's actions must have been intentional and with a wrongful purpose (Application of Cobler, supra; Application of Borges, supra). Petitioner has failed to establish that respondent's actions were motivated by a wrongful purpose. To the contrary, respondent contends that he acted in good faith and on the advice of counsel as to the legality and enforceability of the "side letter" agreement, thereby lacking the willfulness necessary for removal from office (Appeal of McCall, 34 Ed Dept Rep 29; Application of Landgrebe, 32 id. 49).

THE APPEAL IS DISMISSED.

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