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Decision No. 14,181

Appeal of ELAINE TSU, DOMINICK IANNACONE, and BERNADETTE DUNNE from action of the Board of Education of the City School District of the City of Yonkers and six individually named board members, regarding the manner of conducting board meetings and district business, and for the removal of Thomas M. Weibrecht from the board of education.

Decision No. 14,181

(July 29, 1999)

Robert I. Dell'Aquila, Esq., attorney for petitioners

Rains & Pogrebin, PC, attorneys for respondents, Howard M. Miller, Esq., of counsel

MILLS, Commissioner.--Petitioners are three members of the Board of Education of the City School District of the City of Yonkers. They challenge a variety of actions taken by the other six board members ("the majority") during 1998 which they claim were in violation of law and/or in violation of the board's own rules, and which allegedly "disenfranchised" petitioners of their rights and duties as board members. Petitioners also claim that respondent Thomas M. Weibrecht, an employee of the City of Yonkers, cannot legally serve as a member of the board of education, and they seek his removal. The appeal must be dismissed.

All parties to this appeal are members of the board of education of the City School District of the City of Yonkers. All parties, pursuant to Education Law "2553(3), have been appointed by the mayor of the City of Yonkers for five-year terms ("2553[4]) beginning on the first Tuesday in May. Prior to May 12, 1998, petitioner Tsu was president of the board. On May 12, 1998, two new board members, respondents Edwards and Blasl, joined the board, having been appointed by Mayor John Spencer. At that same board meeting, respondent Cousens was elected president in place of petitioner Tsu, and respondent Weibrecht was elected vice president.

At some point late in 1997 or early in 1998, it appears that a majority of then-serving board members concluded that it would be best if the then-serving superintendent left that position prior to the expiration of his contract. It appears that petitioners Dunne and Iannacone did not agree. On January 21, 1998, the board approved a contract with an executive search firm to seek a new superintendent. Petitioners claim that the contract was reviewed by the Yonkers City Corporation Counsel rather than the board's counsel, at the behest of respondent Weibrecht.

On April 8, 1998, then-president Tsu formed a special search committee without a vote of the board to interview candidates for superintendent and recommend a finalist for an interview with the entire board. Tsu appointed herself, respondent Diaz, and respondent Ferrito to that committee. On May 20, after his election as board president, respondent Cousens formed a new search committee, with board approval, consisting of respondents Diaz and Ferrito, who served on the previous committee, and respondents Edwards and Weibrecht. Throughout this period, the search for a new superintendent continued.

On June 17, 1998, the board approved a settlement with the prior superintendent by a vote of 7-2, with petitioner Iannacone voting in favor and petitioners Tsu and Dunne voting against. Prior to the July 15, 1998 board meeting, the board met in executive session, and the search committee's candidate for superintendent, Dr. Andre J. Hornsby, was introduced. In the open session which followed, the board approved an employment contract with Dr. Hornsby by a vote of 6-0, with the six member majority voting in favor, and petitioners abstaining. This appeal was commenced September 9, 1998.

Petitioners present numerous allegations of wrongdoing going back to January 1998. They complain that the contract with the executive search firm should not have been reviewed by the City's Corporation Counsel, but should have been reviewed by the school board's counsel. They allege, upon information and belief, that numerous illegal meetings were conducted by a quorum of board members without notice to them. They further claim that various resolutions were adopted in violation of board policy because they were not previously placed on an agenda, including the resolution approving the employment of Dr. Hornsby. They allege, upon information and belief, that the majority board members provided confidential information to the mayor, and that throughout the entire search process the mayor has exerted undue influence on the majority. They further claim that certain majority board members traveled to Houston, Texas, during the search


process, without proper authorization, and expended public funds improperly.

Petitioners ask me to order the board to comply with its own rules; to order the board to give proper notice of meetings in the future; to order the board not to adopt resolutions which have not previously appeared on the agenda; to remove board member Weibrecht from the board, or, in the alternative, to order him to resign from his position as an employee of the City of Yonkers; and to order board members who traveled during the search process to repay the cost of their travel.

Respondents generally deny any and all wrongdoing, and claim that they have in all respects conducted themselves in a proper and legal fashion. They present a number of affirmative defenses, including a claim that the petition actually seeks declaratory, advisory relief. Respondents claim that the actions complained of in all cases occurred more than 30 days prior to the commencement of the appeal on September 9, 1998, and that the appeal is untimely pursuant to 8 NYCRR "275.16. Respondents further claim that there is no distinct statement of a wilful violation of law, neglect of duty, or wilful disobedience justifying the removal of respondent Weibrecht, as required by 8 NYCRR "277.1. Respondents argue that, to the extent petitioners seek relief pursuant to the Open Meetings Law or the Freedom of Information Law, I lack jurisdiction of those claims. Finally, respondents request that I issue a certificate of good faith.

I find that those portions of the appeal dealing with alleged improper conduct by members of the board, in the conduct of meetings, transaction of business, and other matters, must be dismissed as untimely. The petition sets forth many allegations, most of which are made only upon information and belief, dealing with board actions from approximately January 1998 to July 15, 1998, when the new superintendent was hired. Petitioners candidly admit that " . . . many of the acts complained of are outside the thirty day period prescribed in Section 275.16 of the Regulations of the Commissioner of Education," but request that these alleged acts nevertheless be reviewed as "part of an ongoing pattern of exclusion." In fact, all of the allegations in the petition deal with acts occurring on July 15, 1998, or earlier, and are barred from my consideration. Petitioners have provided no excuse for failing to bring this appeal in a timely manner. To the extent that petitioners have improperly attempted to introduce new complaints of wrongdoing in their reply, I have not considered their claims (Appeal of Foshee, 38 Ed Dept Rep 346, Decision No. 14,051; Appeal of Corbett, 34 id. 138, Decision No. 13,261; Appeal of Post, 33 id. 151, Decision No. 13,006). Petitioners have not asked for any specific relief with respect to actions that preceded the commencement of this appeal, and a mere attempt to show a "pattern of misconduct" is insufficient to avoid the consequences of untimely commencement (Application of Lupiani, 36 Ed Dept Rep 355, Decision No. 13,747).

To the extent that petitioners' allege violations of the Open Meetings Law and the Freedom of Information Law, the appeal must be dismissed on the ground that I have no jurisdiction over the enforcement of these statutes, as well established in case law (see, e.g., Appeal of Ponella, 38 Ed Dept Rep 610, Decision No. 14,103, and cases cited therein [Freedom of Information Law]; Appeal of Goldin, 38 id. 317, Decision No. 14,043, and cases cited therein [Open Meetings Law]).

Even if I were not dismissing most of the petition on procedural grounds, I would dismiss on the merits. Petitioners present numerous vague allegations of misconduct, almost all upon information and belief, but provide no factual basis for their claims. For example, while alleging the conduct of illegal and clandestine board meetings, petitioners provide no dates or details of these alleged meetings. They make claims that the mayor of the City of Yonkers was provided access to board documents, and that he unduly influenced the board, but make no reference to any particular documents, or to any particular examples of undue influence. Petitioners claim that respondents used board funds to travel to Houston, Texas, to meet with the ultimate choice for superintendent, and claim that this was improper because the board did not take prior action to authorize the travel. However, the board policy to which they point states that board members will be reimbursed for business travel, and says nothing of prior approval. Petitioners complain that the majority has violated board policy by introducing, and voting on, resolutions at the same board meeting, but do not provide a copy of the board procedures as they existed prior to July 15, 1998, when a new procedure was adopted, to support their claims. Petitioners have utterly failed to provide any credible evidence of wrongdoing, which is their burden of proof.

While couching their complaints in terms of wrongdoing on the part of respondents, the core of petitioners' complaints is that they find themselves in a minority position on the board, apparently outnumbered by appointees


of a mayor other than the mayor that appointed them. They have not been successful in making or influencing board policy, or in dissuading the majority from carrying out its own program.

Petitioners' complaints with respect to respondent Weibrecht present different issues, and, because Weibrecht continues to serve as a board member, these claims are timely.

Petitioners claim that respondent Thomas M. Weibrecht must be removed from the board of education because his employment by the City of Yonkers creates a conflict of interest with his position as a board member. Petitioners appear to claim both that Weibrecht's two positions are incompatible as a matter of common law, and that he is in violation of General Municipal Law "801. I disagree.

In the leading case of People ex rel. Ryan v. Green (58 NY 295) the Court of Appeals set forth the basic rules for determining incompatibility of offices. In general, the Court held that, in the absence of some constitutional or statutory prohibition, two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two offices. As characterized by the Attorney General, "The former can be characterized as 'you cannot be your own boss', a status normally easy to see. The latter is not easily characterized, for one must analyze the duties of the two offices to ascertain whether there is an inconsistency. An obvious example is the inconsistency of holding both the office of auditor and the office of director of finance." (Opn. No. I91-59.) Petitioners have cited no constitutional or statutory bar, since Education Law "2502(7) does not apply to large city school districts.

Respondent Weibrecht has provided an affidavit and a description of his job duties as Director of Capital Projects for the City of Yonkers. It appears that he is an "at-will" employee of the city, serving at the pleasure of the mayor and reporting to the mayor. Among listed work activities are an analysis of current and proposed capital procurement contracts, administration of the city's capital improvement budget, developing procedures for preparing bids for specifications, and recommending method of payment for services and equipment provided.

Petitioners have pointed to no specific violations of law. Their argument is that, because the school district's funding comes from the City of Yonkers, and because capital construction undertaken by the school district makes up a large portion of the capital construction done by the city,


there is an inherent conflict of interest. They argue that, because Weibrecht reports directly to the mayor, and because the mayor has allegedly expressed an interest at times in limiting the board's request for funding, that there is undue influence and, again, a conflict between the two positions. Especially since all members of the board of education are appointed by the mayor, these conclusory statements fail to prove any inconsistency between the two positions.

Petitioners also claim that there is a continuing violation of General Municipal Law "801. Among other things, "801 prohibits a school board member from having an interest in any contract with the school board of which he is a member, if as a member of the board, he has the power or duty to negotiate, prepare, authorize or approve the contract. Section 800 defines a contract as including "any claim, account or demand against or agreement with a municipality, express or implied . . . ." Petitioners argue that respondent Weibrecht's "ability to negotiate, prepare, authorize, and approve capital improvement contracts on behalf of the board, impermissibly assists him in earning his salary as Director of Capital Projects. As Director of Capital Projects, Mr. Weibrecht holds a pecuniary interest in such contracts that violate the law." I disagree. The intent of ""800 and 801 is to protect the integrity of contracts made by the school district with outside entities in which board members may have some financial interest. Here, there is no alleged contract within that definition. The board of education does not have a contractual relationship with the city of Yonkers, from which respondent Weibrecht would somehow profit. The interpretation argued for by petitioners goes well beyond the wording of the statutes.

In his position as Director of Capital Projects, respondent Weibrecht states in his affidavit that he cannot interfere with any action taken by the district, and as a board member, he cannot interfere with any action taken by the city. He states that as a city employee he has no power over funding for the district, which power rests with the city council. I therefore am unable to agree that any inherent conflict exists.

In light of this disposition, it is unnecessary to discuss the parties' other claims, which I find without merit.