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Decision No. 13,902

Application of DIMITRI CUTTITA and EDWARD DOYLE for the removal of Earl Washburn, Nancy Slauson and Susan Lettieri as members of the Board of Education of the Roxbury Central School District.

Decision No. 13,902

(March 30, 1998)

McCary & Huff, LLP, attorneys for petitioners, Kathryn McCary, Esq., of counsel

Shaw & Perelson, LLP, attorneys for respondents, Stephen Perelson, Esq., of counsel

MILLS, Commissioner.--Petitioners seek the removal of certain members of the Board of Education of the Roxbury Central School District pursuant to Education Law "306. The application must be denied.

Petitioners are residents of the Roxbury Central School District. Respondents are the president and two members of the board of education. Petitioners seek the removal of respondents because they deliberately violated the Open Meetings Law. Petitioners allege that on September 6, 1996 respondents held a meeting by telephone at which they took official action on behalf of the school district relating to a controversial construction project. Petitioners assert that there was no public notice of this meeting and that the subject of the meeting was not an emergency but could have waited for discussion at a properly noticed public meeting. Petitioners further allege that on September 9, 1996, board president Washburn sent a letter to the district’s legal counsel, seeking action based on the direction given by the majority of the board in their meeting of September 6, 1996.

Respondents admit that certain conversations took place between respondents and other board members on September 6 and 7, 1996 concerning the disputed construction project. Respondent Washburn further admits that he subsequently drafted the September 9, 1996 letter and forwarded it with a packet of documents relating to the construction project to the school district's counsel. At its regular meeting on September 12, 1996, the board passed a motion to have district counsel review the documentation regarding the project and advise the board of education. Respondents deny that any meeting of the board of education occurred on September 6, 1996 or that the board undertook any official action on that date.

Petitioners seek respondents' removal from the board of education for alleged violations of the Open Meetings Law, the Education Law and their alleged failure to perform their official duties. Petitioners further request that I conduct a hearing regarding respondents’ removal. Petitioners also contend that I should not issue a certificate of good faith pursuant to Education Law "3811. Respondents contend that no meeting of the board of education took place on September 6, 1996. Respondents further contend that the Commissioner of Education lacks jurisdiction over alleged violations of the Open Meetings Law, that the petition fails to state a cause of action under Education Law ""306 and 1706, and that the notice included with the petition was defective and does not comply with 8 NYCRR "277.1.

It is well established that violations of the Open Meetings Law are properly brought in State Supreme Court, pursuant to Article 7 of Public Officers Law (""100, etseq.). Numerous decisions of the Commissioner of Education have recognized that the proper forum for Open Meetings Law violations is State Supreme Court (Appeal of Marek, 35 Ed Dept Rep 314; Appeal of Chester, 35 id. 512; Appeal of Homick, 34 id. 150; Appeal of Wolf, 34 id. 164; Appeal of McDougald, 34 id. 424). Clearly, violations of the Open Meetings Law must be brought in State Supreme Court, and a court, upon good cause, may declare void any action taken in violation of the law (Public Officers Law "107).

Petitioners advance the novel argument that while the Commissioner of Education has no jurisdiction over violations of the Open Meetings Law, the Commissioner may determine that a willful violation of that law occurred and pursue the matter under Education Law ""306 and 1709. However, petitioners have presented insufficient evidence that a willful violation of law occurred on the facts alleged. Respondents admit that certain conversations took place, but cite Board Policy No. 2111, which states that board members "have legal authority for the conduct of the district schools only when acting as a body in a properly convened session." Respondents allege that their conversations on board matters were personal opinion and were not official board actions.

Education Law "306 authorizes the Commissioner of Education to remove a member of a board of education for "wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in state funds, or wilfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education…" (Education Law "306[1]; Application of the Coalition for the Empowerment of People of African Ancestry, 36 Ed Dept Rep 421; Application of Cobler, 35 id. 176; Application of Borges, 34 id. 459). In an appeal before the Commissioner of Education, petitioner has the burden to establish the facts upon which he seeks relief (8 NYCRR 275.10; Application of Cobler, supra). On the basis of the sworn representations of respondents that these conversations did not constitute board action, and a lack of proof by petitioners that those conversations actually constituted official board action, I see no basis in the record before me to warrant respondents’ removal. Therefore, I must deny petitioners’ request for a hearing and deny the application.

Petitioners also contend that I should not issue a certificate of good faith pursuant to Education Law "3811. Education Law "3811 requires school districts to pay for the legal expenses incurred by board members in proceedings arising out of their official duties. To invoke "3811, a board member must notify the board of education, in writing, of the commencement of a proceeding, within five days after service of process. Within ten days following receipt of that notice, the board must designate and appoint legal counsel to represent the board member, and the court or Commissioner of Education, as appropriate, must certify that the board member appeared to have acted in good faith with respect to the exercise of his or her powers or the performance of his or her duties under the Education Law (Education Law "3811; Appeal of Hines, 35 Ed Dept Rep 508; Application of Danin, 32 id. 20).

Pursuant to Education Law "3811, respondents request that I issue a certificate of good faith. The record indicates that respondents were originally served in this action on October 2, 1996. Although there is no indication in the record that respondents provided the board of education with the written notice specified in Education Law "3811(1), respondents present a copy of the minutes of the October 9, 1996 board meeting indicating that a motion was passed that the papers in this matter be sent to school district counsel for response. It is clear that the board was on notice of the proceeding and was willing to defend respondents. I find that the purpose of the statute was substantially satisfied and that adequate and timely notice of the proceeding was provided to the board of education (Application to reopen the Appeal of Rampello, 37 Ed Dept Rep 176; Application of Beadle, et al., 25 id. 267; Matter of McNulty v. Binghamton City School District, 110 Misc 2d 239, 441 NYS 2d 867 [1981]). Moreover, in light of the fact that the application is dismissed on the merits, I certify pursuant to Education Law "3811 that respondents acted in good faith in the performance of their duties as related to this proceeding.