Decision No. 13,742

(February 28, 1997)

MILLS, Commissioner.--Petitioner seeks the removal of the president of the Board of Education and the superintendent of the Odessa-Montour Central School District pursuant to Education Law '306. The application must be denied.

Petitioner, a member of the Odessa-Montour Board of Education since 1993, requests that respondent Gooley be removed from his position as superintendent and from all other positions he holds in the district and that respondent Pittman be removed as a member and president of the Odessa-Montour Board of Education. Petitioner bases her request on ten allegations:

Respondents contend that the application is untimely and that with respect to respondent Gooley, petitioner has failed to follow the termination procedure included in his superintendent's employment contract. Respondents maintain that they acted in good faith in the exercise of their powers and in the performance of their duties.

Allegations one through eight above 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). This regulation applies to applications for removal pursuant to Education Law '306, as well as to appeals filed under '310 of such law (Application of Quinones, 25 Ed Dept Rep 497). Petitioner commenced this action on July 8, 1996. All of the events described in support of allegations one through eight occurred on or before March 21, 1996, more than three months earlier.

With respect to allegations nine and ten, petitioner has failed to establish facts sufficient to warrant removal of either respondent 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 such 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).

With respect to petitioner's ninth allegation -- usurping the board's authority and obstructing the board's function regarding the hiring of a treasurer -- petitioner has failed to demonstrate a clear legal right to relief in that she has not demonstrated a willful violation or neglect of duty. Petitioner alleges that by letter dated May 25, 1996, petitioner requested a copy of the job specifications for the position of treasurer and asked that the board be involved in the hiring process. On June 12, 1996, a special executive session meeting was held to discuss filling the treasurer's position. On June 20, 1996, petitioner interviewed four candidates for the position. Petitioner alleges that at the time this action was commenced, she had not received the job specifications, in violation of a board policy which requires the superintendent to maintain "a comprehensive, coordinated set of job descriptions for all [administrative personnel] positions."

Respondents contend that they accommodated petitioner's request to involve the board in the hiring process. Respondents also argue that the treasurer's position is not an "administrative position" under the direction of the superintendent, but rather is an exempt position responsible to the board of education, and that a board policy sets forth the duties of the treasurer. Absent from this record is any evidence of willfulness to support removal under '306.

Petitioner's tenth allegation concerns the district's purchase of a pickup truck and the discussion of that purchase and of certain financial transactions at a board meeting. Petitioner alleges that on March 29, 1996 respondent Gooley purchased a 3/4 ton pickup truck, costing in excess of $10,000, without following competitive bidding procedures, as required by '103 of the General Municipal Law. She also alleges that when she questioned respondent Gooley about the truck purchase at the June 20, 1996 board meeting, he knowingly lied in response, indicating that the truck had been purchased on state contract.

Respondents explain that the truck in question was purchased without competitive bidding because the purchase price, after trade-in, was less than $10,000. Respondents further explain that the district also bought a snow plow, and that because the truck and plow were put on the same purchase order, the total exceeded $10,000. Respondents concede that the two purchases should have been placed on separate purchase orders, but argue that such an error is not a sufficient basis for removal. Respondent Gooley contends that when petitioner questioned him about the 3/4 ton truck at the June 20, 1996 board meeting, he had indicated that it was purchased on state contract because he thought she was inquiring about another truck which the district recently purchased, unaware that the truck he was discussing was not the 3/4 ton truck.

First, petitioner's allegation that the March 1996 truck purchase violated the General Municipal Law is untimely. With respect to petitioner's allegation that respondent Gooley made false statements concerning the truck purchase at the June 20, 1996 board meeting, respondent explains that he mistakenly thought petitioner was asking about another recently purchased truck and petitioner has failed to establish that respondent's actions were motivated by a wrongful purpose. Nothing in the record undermines the credibility of this explanation.

Petitioner also alleges that at the June 20, 1996 meeting, respondent Gooley was unable to answer questions about certain account transfers and about BOCES computer expenditures. She contends that he violated board policy by failing to disclose overspending in a district account and that the transfers were intended to obscure the facts. Respondent contends that the transfers and expenditures were proper and that although he could not answer petitioner's questions off the top of his head, he provided appropriate documentation in accordance with Commissioner's regulations. Therefore, with respect to the June 20, 1996 discussion of certain financial transactions, petitioner has again failed to establish a willful violation or neglect of duty.

THE APPEAL IS DISMISSED.

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