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Decision No. 13,740

Appeal of LOUIS C. PULVERMACHER from action of the Board of Education of the Millbrook Central School District.

Decision No. 13,740

(February 26, 1997)

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

MILLS, Commissioner.--Petitioner, a member of respondent board, challenges actions of Thomas Hurley, board president. The appeal must be dismissed.

Petitioner alleges that Mr. Hurley has violated board policy, Education Law, Commissioner's regulations, and the Open Meetings Law in the manner in which he conducts board business and board meetings. Specifically, petitioner alleges that Mr. Hurley announced on June 17, 1996, without board approval, that he would limit public comments to the two periods on the agenda provided for public participation, contrary to past practice. Petitioner argues that the new rule is inconsistent with the district's public information and community relations policies. He also alleges that since the change two members of the staff were allowed to speak at a board meeting about a proposed construction project in violation of board policy and without board consent. Petitioner contends that Mr. Hurley improperly had private discussions about the public speaking policy with other board members and that he improperly held a vote during Executive Session concerning the retention of an attorney. Finally, petitioner alleges that Mr. Hurley speaks on items pending before the board while acting as the presiding officer, contrary to the board's policy to follow Robert Rules of Order, Revised. Petitioner argues that Mr. Hurley limited public participation so that he could express his own views at length and submitted audio tapes of four board meetings in support of his contentions.

Petitioner requests that I enjoin Mr. Hurley from: (i) speaking on matters before the board while acting as presiding officer; (ii) conducting board business except at board meetings; (iii) enforcing a policy which limits public speaking at board meetings; and (iv) canvassing board member opinions except at board meetings.

In its defense, respondent contends that the Commissioner does not have jurisdiction over issues governed by the Open Meeting Law, that petitioner's allegations do not form a legal basis for relief, that a board of education has broad discretion in controlling its agenda, and that the audio tapes were untimely.

As a threshold matter, the appeal must be dismissed for failure to join a necessary party. A party whose rights would be adversely affected by a determination for the petitioner is a necessary party and must be joined as such (Appeal of Frasier, 34 Ed Dept Rep 315). Here, petitioner specifically challenges Mr. Hurley's actions and asks me to enjoin him from certain actions. If petitioner prevails in this appeal, Mr. Hurley's rights would be affected. Therefore, Mr. Hurley is a necessary party and the appeal must be dismissed for failure to join him.

To the extent that petitioner's allegations concern violations of the Open Meetings Law, 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 Marek, 35 Ed Dept Rep 314; Appeal of Nolan, et al., 35 id. 139).

Petitioner's remaining claims must also be dismissed because the Commissioner is without authority to order the relief requested. Section 275.10 of the Commissioner's regulations requires that a "petition 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 demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief (Appeal of Marek,supra; Appeal of Nash, 35 Ed Dept Rep 203). While the Commissioner of Education is authorized pursuant to Education Law '306 to remove a board member from office for willful misconduct or neglect of duty, no provision of the Education Law permits the Commissioner to censure or reprimand a board member (Appeal of Henning, et al., 33 Ed Dept Rep 232; Appeal of Brousseau, 31 id. 155).

While precedent does exist for the Commissioner to enforce a school district's policy where it has been established that a board violated that policy (Appeal of Joannides, 32 Ed Dept Rep 278; Appeal of Brenner, 28 id. 402), the policies on which petitioner relies are very general in nature, and petitioner has not sufficiently established a violation to warrant my intervention (seeAppeal of Marek, supra). Education Law '1709(3) authorizes a board of education to manage and administer the affairs of the school district. 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), the facts in this case do not require me to do so. However, I remind Mr. Hurley, "School board members are public officers, bound to those standards regulating their conduct while in office required of other public officers" (Wong v. New York State Board of Elections, 82 Misc. 2d 521).