Decision No. 13,781

(June 25, 1997)

Mills, Commissioner.--Petitioners seek the removal of Bruce Revette as a member of the Board of Education of the DeRuyter Central School District pursuant to Education Law '306. The application must be denied.

Petitioner Maxine R. Cleveland is a teacher employed by the DeRuyter Central School District and petitioner Kathleen A. Bedell is a resident and taxpayer as well as a teacher employed by the school district. Petitioners allege that on March 26, 1996 respondent Revette faxed to the school district offices a cartoon which referred to petitioner Cleveland and one of the attorneys in the law firm that represents the district, Sharon Sutter, as a "pig" and a "babe". The cartoon also made derogatory references concerning a number of other individuals, including two other attorneys representing the district and John O'Mara, then board president.

By way of background, petitioners maintain that on January 11, 1996 the Board of Education of the DeRuyter Central School District ("the board") formally censured respondent for the alleged sexual harassment of petitioner Cleveland and Marilyn Adsitt, a former district employee. The resolution admonished respondent that it would not condone such inappropriate conduct nor would it condone any retaliation by respondent against any individual who bought complaints about respondent to the attention of the board. The board had directed its attorneys to investigate the allegations forming the basis for petitioner Cleveland's complaint. Pursuant to that directive, the attorneys conducted an investigation and submitted a report to the board. Petitioners contend, in effect, that respondent distributed the cartoon in response to the board's and the board's counsel's actions in investigating the complaint and taking public action against respondent.

In response to the cartoon, the board passed a resolution on March 28, 1996, publicly censuring respondent for the cartoon and admonishing him that such conduct would not be tolerated in the future. The board apologized to petitioner Cleveland and to Ms. Sutter and requested respondent to publicly apologize to both women.

Petitioners seek respondent's removal for his conduct toward petitioner Cleveland which they maintain demonstrate that he has abused his office, neglected his duty and wilfully violated board resolutions and state and federal statutes prohibiting sexual harassment and retaliation.

In response, respondent submitted an unsworn letter characterizing the instant appeal as a "local witchhunt" and attaching newspaper articles claiming to support his contention that he has been a consistent critic of various district officials, and at odds with other board members and community members on fiscal issues.

A member of the Board of Education may be removed from office pursuant to Education Law '306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a wilful violation or neglect of duty under the law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Northup, 25 Ed Dept Rep 161). To be considered wilful, respondent's actions must have been done intentionally and with the wrongful purpose (Application of Cobler, 35 Ed Dept Rep 176; Application of Sabuda, 31 id. 461). In an appeal before the Commissioner of Education, the petitioner has the burden to establish the facts upon which he or she seeks relief (8 NYCRR '275.10; Application of Sabuda, supra; Application of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284).

Petitioners have failed to establish that respondent's actions constitute a wilful violation or neglect of duty under the law. A review of the record reveals that the cartoon in question was clearly a satirical lampoon of petitioner Cleveland, various attorneys who participated in investigating her sexual harassment complaint against respondent and the board president and the district superintendent, who have also taken positions critical of respondent. Fairly read, while the cartoon does refer to petitioner Cleveland and Ms. Sutter as "babes", respondent has also included himself in the "joke", appearing to refer to himself as a "pig". The basis for the request for removal in this instance appears to be that the cartoon was primarily retaliation against petitioner Cleveland for bringing a sexual harassment complaint to the attention of the board with the resulting investigation and censure of respondent. While respondent's earlier behavior toward Ms. Cleveland is not an issue in this appeal, it should be noted that the board's attorneys, after concluding their investigation, found that respondent's single comment to Ms. Cleveland did not rise to the level of sexual harassment within the meaning of Title VII. The attorneys did conclude that respondent's conduct was inappropriate, and the board acted accordingly.

It is clear that an error in judgment or an instance of inappropriate or unbecoming speech by a board member is not grounds for his removal (Application of Gellatly, et al., 30 Ed Dept Rep 10; Application of the Bd. of Ed., Cornwall CSD, 25 id. 250). In addition, while petitioners attempt to characterize the cartoon as retaliatory, petitioners have not proven that any adverse employment actions were taken against petitioner Cleveland as a result of her raising the sexual harassment complaint either directly by respondent, or by any other district official at the behest of respondent.

THE APPLICATION IS DENIED.

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