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Decision No. 13,911

Application of HENRY F. HENNESSEY for the removal of Richard J. Hawkins as superintendent of schools in the William Floyd Union Free School District.

Decision No. 13,911

(April 9, 1998)

Tinari, Paar, Matthews, O'Connell & Osborn, LLP, attorneys for petitioner, Patrick M. O'Connell, Esq., of counsel

Ehrlich, Frazer & Feldman, attorneys for respondent, Florence T. Frazer, Esq., of counsel

MILLS, Comissioner.--Petitioner seeks the removal of Richard J. Hawkins ("respondent") as superintendent of schools of the William Floyd Union Free School District for alleged misconduct in connection with an annual election conducted on May 21, 1996. Petitioner also seeks an order "censuring and admonishing" respondent. The application must be denied.

Petitioner was the unsuccessful candidate at an annual election held on May 21, 1996, for a seat on the Board of Education of the William Floyd Union Free School District. Petitioner alleges that respondent is responsible for irregularities that occurred during the conduct of the election and contends that such action warrants his removal as superintendent of schools. Specifically, petitioner alleges that, as a result of respondent's instructions to district employees, certain qualified voters were not permitted to cast ballots at the election. Petitioner also alleges that respondent engaged in improper electioneering prior to the vote.

Respondent counters that this appeal was not properly served and, therefore, must be dismissed on procedural grounds. With respect to the merits, respondent alleges that the conduct of the election was in all respects proper, that no improper electioneering occurred, and that petitioner has established no basis for his removal from office.

I will first address respondent's procedural claim. Respondent alleges that petitioner failed to effect proper service of the petition and supporting papers. Petitioner's affidavit of service indicates that petitioner personally served respondent at 11:30 p.m. at his residence. Section 275.8(a) of the Commissioner's regulations provides, in pertinent part:

A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers… shall be personally served upon each named respondent… between six o'clock in the morning and nine o'clock in the evening…

That provision requires that service be effected within the hours specified in the regulation (Appeal of Pavacic, 32 Ed Dept Rep 135; Appeal of the Board of Education of the City School District of the City of New York, 25 id. 359). Petitioner does not contest that service upon respondent occurred at 11:30 p.m., outside the specified time period. Nor does petitioner offer any basis on which to excuse the failure to properly serve the petition upon respondent. Therefore, because petitioner failed to effect proper service upon respondent, the appeal must be dismissed.

The appeal must also be dismissed on the merits. Education Law "306 authorizes the Commissioner of Education to remove a superintendent of schools for willful violation of law, neglect of duty or willful disregard of any decision, order, rule or regulation of the Board of Regents or of the Commissioner of Education. A "willful" act is one intentionally done with a wrongful purpose to disregard a lawful duty or violate a legal requirement (People v. Skinner, 37 AD 44, aff'd 159 NY 162; Application of Lalonde, 31 Ed Dept Rep 408; Application of Gellatly, et al., 30 id. 10).

Petitioner alleges that certain individuals were denied their right to vote at the May 21 election as a result of improper registration and voting procedures which violated the Education Law. Petitioner alleges, in a conclusory manner, that such violations occurred as a result of respondent's directions to school district employees. In Appeal of Hennessey, 37 Ed Dept Rep ___, Decision No. 13909, dated April 3, 1998, in which petitioner raised identical challenges to the registration and voting procedures adopted by the Board of Education of the William Floyd Union Free School District, I held that the board substantially complied with the requirements of the Education Law and that petitioner had failed to establish any basis to overturn the results of the May 21 election. As indicated in that decision, it is the board of education that adopts procedures to be used at school district elections in compliance with the Education Law, not the superintendent of schools. Therefore, any improper procedures adopted by a board of education would not be a reason to remove the superintendent of schools.

Petitioner asserts, however, that respondent instructed district employees to act in violation of the Education Law during the election. Petitioner makes that allegation in a conclusory manner and offers no evidence in support of his claim. Consequently, I find that petitioner has failed to establish that respondent acted in willful disregard of the requirements of Education Law in connection with election procedures.

Petitioner also claims that a memorandum issued by respondent improperly endorsed two candidates for election to the board of education, contained negative implications regarding petitioner and, therefore, constituted an unlawful use by respondent of district funds in violation of the Court of Appeals decision in Phillips v. Maurer, 67 NY2d 672. In Phillips, the Court held that district funds may not be used to exhort the electorate to support a particular candidate or position in a school district election. However, a school district may disseminate purely factual information (Phillips v. Maurer, supra; Appeal of Loriz, 35 Ed Dept Rep 231).

In the instant matter, the record indicates that the respondent's memorandum was an attempt to quell rumors circulating among certain staff members that a number of employees were likely to lose their jobs. Specifically, respondent had been advised that custodial staff were concerned about a rumor that two candidates for the board of education, incumbent Jeananne Dawson and Anthony Liberti, intended to eliminate the district's maintenance department, consisting of about 75 custodial, maintenance and grounds workers. In an attempt to reassure staff, respondent issued a memorandum only to the district's custodial staff. The memorandum stated, in pertinent part,

The latest rumor which has come to my attention is that one of our Board members running for re-election, Jeananne Dawson, and her running mate, Tony Liberti, intend to eliminate the maintenance department. This is your plain old garden variety B.S.! The fact is that Jeananne has voted yes on every contract, every leave and everything else associated with custodial maintenance and grounds employees. This budget contains funds for more custodial personnel, not less! This budget furthers our goal of placing 'kids first' and advancing our educational standards.

Everyone is entitled to and should vote for whoever they want. Hopefully, you will make a decision on who to vote for based on facts, not on half-truths and rumors. I had hoped that we were past this type of negativity. Apparently, we are not.

A review of the memorandum shows that after identifying the rumor, respondent addressed the factual voting record of incumbent Jeananne Dawson regarding maintenance and custodial issues and made no further mention of any other candidate.

Nothing in the memorandum promoted a specific candidate. Moreover, the memorandum clearly states, "[e]veryone is entitled to and should vote for whoever they want." Thus, respondent's memorandum fell far short of an endorsement of candidates Liberti and Dawson. Rather, it was merely a memorandum intended to set the record straight on an issue directed only to those employees affected by the rumor. Accordingly, respondent's memorandum did not violate the proscription against the use of district funds to promote a particular candidate. Even assuming the memorandum was improper, petitioner has not demonstrated that respondent acted in willful disregard of the law. Because the record fails to demonstrate that respondent willfully misused district funds or acted with willful disregard of the Education Law respecting school district elections, petitioner's application is denied.

With respect to petitioner's request for an order pursuant to Education Law ""308 and 310(7) "censuring and admonishing" respondent, such an order would constitute disciplinary action against respondent. Petitioner must seek disciplinary action from the respondent's employer, the board of education, in the first instance. Because disciplinary action against a superintendent of schools is within the discretion of the employing board of education, petitioner should have brought his complaint to the board of education whose decision may then be reviewed in an appeal to the Commissioner of Education (see, Appeal of Anonymous, 32 Ed Dept Rep 433). The authority of the Commissioner to take action against a superintendent of schools is governed by Education Law "306 which provides only for removal from office after a hearing. As noted above, petitioner has established no basis for such relief pursuant to Education Law "306.