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Decision No. 14,158

Application of DIONE GOLDIN, et al., for the removal of Ann S. Fadgen, Teresa Golden, George Mann, John A. McLaughlin, Robert N. Melnyk, and Mary Penny, as members of the Board of Education of the Wappingers Central School District.

Decision No. 14,158

(July 15, 1999)

Michael K. Lambert Esq., attorney for respondents

MILLS, Commissioner.--Petitioner Dione Goldin and 15 other named petitioners who are residents of the Wappingers Central School District, seek the removal of six of the nine members of the Board of Education of the Wappingers Central School District ("respondents"), due to alleged violations of the Open Meetings Law. The application must be denied.

Petitioners commenced this appeal on March 9, 1998. Petitioners' stay request was denied on March 31, 1998.

Petitioners allege that respondents illegally convened executive sessions on at least 16 occasions since November 24, 1997. The most recent allegation involves the board's February 17, 1998 meeting. Petitioners also claim that respondents schedule meetings without notifying all members of the board, and use e-mail to communicate board business, despite the fact not all board members have access to a computer. Petitioners further contend that the notices of meetings are not adequately publicized.

Additionally, petitioners object to the board's adoption of a confidentiality policy and the manner in which confidential materials are distributed to the board under that policy. Finally, petitioners allege that the school attorney's contract results in a conflict of interest. Petitioners request that I intercede in the operation of the board to insure compliance with the Open Meetings Law, and remove respondents from the board of education for repeated violations of law.

Respondents contend that the board properly convened all executive sessions in conformity with the law. Respondents also assert that their actions concerning the control of confidential information was in all respects proper and consistent with the board's authority. In addition, respondents allege that their removal under Education Law "306 is inappropriate because petitioners have failed to prove any wilful violation or neglect of duty under the law.

Respondents also raise a number of procedural defenses to petitioners’ allegations. Initially, they maintain that I lack jurisdiction over alleged violations of the Open Meetings Law. Respondents also maintain that most of petitioners’ allegations regarding executive sessions are untimely, in that the appeal was not commenced until March 9, 1998, yet most of the alleged illegal executive sessions occurred before February 1, 1998. Respondent further claims that all of petitioners’ allegations concerning the school district attorney are untimely. In addition, respondents maintain petitioners have failed to join all necessary parties.

I will first address several of respondents’ procedural arguments. An appeal to the Commissioner of Education must be brought within 30 days from the making of the decision or the performance of the act complained of, except for good cause shown in the petition (8 NYCRR "275.16). Petitioners offer no reason for the late filing of the petition as it relates to allegations of improper executive sessions held prior to February 7, 1998. Therefore, any allegations regarding executive sessions held before that date are dismissed as untimely.

Petitioners' allegations regarding the employment of Michael K. Lambert are untimely. Petitioners allege that the hiring of Mr. Lambert into a civil service position, his employment contract with the district, and his appointment as chief labor negotiator for the district were all wrongful acts on the part of respondents. The district initially hired Mr. Lambert in September 1995, his current employment contract was approved effective July 1996, and he was appointed chief labor negotiator for the district in August 1997. All of these events occurred more than 30 days before the filing of this appeal. Accordingly, these claims must be dismissed as untimely.

Petitioners allegation concerning the board's adoption of the confidentiality policy is also untimely. According to the record, the board adopted the policy at issue on November 10, 1997. Therefore, to the extent the petition challenges the adoption of that policy, it must be dismissed as untimely.

The appeal must also be dismissed for lack of jurisdiction. Public Officers Law "107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner. Inasmuch as the Open Meetings Law governs the use of executive sessions, any allegations with respect thereto may not be the basis for an appeal to the Commissioner of Education (Appeal of Lambert, et al., 37 Ed Dept Rep 588, Decision No. 13,935; Appeal of Gwinner, 37 id. 262, Decision No. 13,854; Appeal of Van Zile, et al., 37 id. 213, Decision No. 13,846). Thus, all of petitioners’ complaints concerning the improper use of executive sessions, and inadequate notice of meetings, must be dismissed for lack of jurisdiction.

Notwithstanding the dismissal of this application on procedural grounds, I would also dismiss it on the merits. Petitioners have failed to establish facts sufficient to warrant removal of members of the board 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 relief (Appeal of Caldwell, et al., 36 Ed Dept Rep 296, Decision No. 13,729; Appeal of Marek, 35 id. 314, Decision No. 13,554). Education Law "306 authorizes the Commissioner of Education to remove a member of the board of education for a wilful violation or neglect of duty under the law (Education Law "306(1); Application of Cobler, 35 Ed Dept Rep 176, Decision No. 13,506; Application of Borges, 34 id. 459, Decision No. 13,382). To be considered wilful, respondents’ actions must have been intentional and with a wrongful purpose (Application of Cobler, supra; Application of Borges, supra). Petitioners have failed to establish that respondents’ actions were motivated by a wrongful purpose. To the contrary, respondents contend that they have acted in good faith and on the advice of counsel. Therefore, respondents' actions fail to evince the wilfulness necessary to warrant their removal from office (Appeal of McCall, 34 Ed Dept Rep 29, Decision No. 13,224; Application of Landgrebe, 32 id. 49, Decision No. 12,754).

In view of the foregoing disposition, I need not address the parties’ remaining contentions.