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Decision No. 14,237

Appeal of DIANE M. KOZAK from action of the Board of Education of the City School District of the City of Lackawanna, Nellie B. King, Superintendent of Schools, John Makeyenko, Elaine Mandy, Kenneth Motyka and Edward Piotrowski, regarding the appointment of personnel and the hiring of an architectural firm.

Decision No. 14,237

(October 29, 1999)

Magavern & Rich, LLP, attorneys for respondents, George R. Rich, Esq., of counsel

MILLS, Commissioner.--Petitioner, the president of the Board of Education of the City School District of the City of Lackawanna, appeals from various actions of the board. The appeal must be dismissed.

Although the petition is unclear, it appears that petitioner appeals the decisions of the Board of Education of the City School District of the City of Lackawanna ("board") to hire a temporary working foreman, two food service helpers, and an architectural firm, and to delegate to the Superintendent of Schools ("superintendent") certain ministerial acts necessary to effectuate those decisions.

It appears that on November 18, 1998 the board adopted a resolution appointing two individuals as food service helpers and one as a working foreman. Shortly thereafter, the superintendent notified the Lackawanna Civil Service Commission ("Commission") of these appointments. By letter dated December 10, 1998, the Commission informed the superintendent and board that the working foreman position in the district had been abolished on May 27, 1997, and that if they wished to re-institute it, they should submit an "MSD222 form requesting classification of the position by the Civil Service Commission." By letter dated December 11, 1998 the Commission notified the superintendent and board that they had failed to provide the Commission with certain paperwork necessary for the Commission to certify the two food service workers. The Commission directed them to forward the appropriate information by January 5, 1999, but indicated that it would temporarily certify the employees in the interim.

At its December 17, 1998 meeting, the board passed two resolutions, over petitioner’s objection, to resolve the deficiencies noted in the Commission’s letters of December 10 and 11, 1998. Among other things, it voted to create and fill a food service helper position, effective November 18, 1998 and a temporary working foreman position effective December 17, 1998 and authorized the superintendent, the board president and clerk to execute the MSD222 forms requested by the Commission.

Despite the board’s adoption of these resolutions, petitioner refused to execute the MSD222 forms, and by letter dated January 11, 1999 notified the Commission of her refusal. Thereafter, at a special meeting on January 27, 1999 the board delegated to the superintendent responsibility for executing all MSD222 forms required by the Commission.

By letter dated January 29, 1999, the Commission forwarded to the New York State Department of Civil Service its correspondence related to its certification of the positions, as well as petitioner’s January 11, 1999 letter. The Commission’s letter explains its decision to certify the positions at issue, and states, in pertinent part:

As you are aware the Lackawanna Civil Service Commission over the years has given temporary certification to positions in the school district… to facilitate hiring for performance of services. A few reasons for temporary approval may be: no notice of appointment, no application for employment, the creation of a new position, etc. When this occurs, we request the required information and the matter is normally resolved within a reasonable time, or within a specific time period (such as next payroll, next meeting, etc.)

* * *

The issues raised in our letters regarding the two positions have been resolved to the Commissioner’s satisfaction…

As to the board’s decision to hire an architectural firm, the record reflects that the board had previously hired the firm to assist the district with plans to build an elementary school, but terminated the firm’s services after district voters initially rejected the bond proposition for the project. After the voters approved the bond proposition, the board sought to re-hire the firm. On February 5, 1999, the superintendent, at the board's request, scheduled a work session and special meeting for February 10, 1999 to permit the board to consider the re-appointment of the firm. According to respondents, each board member received two packets of information about the project several weeks before the meeting. Representatives from the architectural firm, the superintendent and various administrative staff were present at the meeting to answer questions from the board about the proposed contract. Petitioner requested more time to review the contract before voting. However, after a majority of the board indicated its readiness to proceed, the board voted to approve the contract and to authorize the superintendent to execute it. According to respondents, the contract is identical to the one initially approved by the board. This appeal ensued.

Petitioner contends, among other things, that the board’s decisions authorizing the superintendent to execute civil service form MSD222 and the contract with the architectural firm were improper and violate board policy 1321, which vests the board president with the authority to execute documents on behalf of the board; and that the board’s appointment of two food service helpers and a working foreman violates the Civil Service Law.

For relief, petitioner requests that I order an "overseer" for the Lackawanna City School District, censure respondents and order them to attend unspecified bimonthly seminars, workshops or conferences to educate them as to their rights and responsibilities and invalidate the board resolutions of January 27, 1999.

Respondents deny petitioner’s allegations, and contend that the petition should be dismissed because it fails to state a cause of action and the Commissioner lacks authority to grant the relief requested.

In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Shufelt, 38 Ed Dept Rep 274, Decision No. 14,032). Petitioner has failed to demonstrate that the board’s decision to appoint two food service helpers and a working foreman violates the Civil Service Law. The record reflects that after the board was notified of irregularities concerning the appointments, it promptly corrected them to the Commission’s satisfaction. Petitioner has failed to supply any evidence that the appointments are in any way illegal or otherwise improper.

Nor do I find merit to petitioner’s contention that the board improperly delegated its authority to the superintendent. Pursuant to Education Law "2503(3), the board of education of a small city school district possesses those powers reasonably necessary to manage and control the educational affairs of the district. The board’s power to delegate its authority in appropriate circumstances is integral to its ability to effectively manage the affairs of the district (see, Appeal of Webb, 33 Ed Dept Rep 493, Decision No. 13,125). I find that the board’s decision to delegate to its superintendent, the chief executive officer of the school district, the ministerial task of executing a civil service form is a reasonable exercise of the board’s authority, especially in light of petitioner’s refusal to carry out the unambiguous wishes of a majority of the board. A board of education is charged with the responsibility to create and fill such positions as, in its judgment, are necessary for the efficient management of the schools (Education Law "2503[5]). The board’s delegation of authority to the superintendent assisted the board in fulfilling this obligation. While some duties are so important that a board of education may not delegate them, ministerial tasks such as the one in question, are not among them (see, Appeal of Webb, supra).

Nor does board policy 1321 prohibit such a delegation of authority. Although the policy vests the board president with the duty to execute documents on behalf of the board, it does not prohibit the board from delegating that task, where appropriate, to other district officials. To the extent that the board has not delegated that duty, it is petitioner’s duty, as board president, to execute documents on behalf of the board. However, I advise petitioner that this duty does not grant her the right to thwart the will of the board majority by refusing to execute documents necessary to carry out lawful board resolutions.

Nor do I find anything improper about the board’s decision to authorize the superintendent to execute a contract it had duly approved. While approval of the contract itself may be a non-delegable duty vested with the board, the ministerial act of executing the contract may properly be delegated to the superintendent.

Finally, it is well established that I do not have the authority to censure or reprimand a board member (Appeal of Kane, 34 Ed Dept Rep 116, Decision No. 13,251; Appeal of Silano, 33 id. 20, Decision No. 12,961). Moreover, on the record before me, I find nothing improper about the board’s conduct.

Although the issue is not before me, I remind petitioner that pursuant to Education Law "306, a member of the board of education may only be removed from office when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the law (Application of Bushman, et al., 37 Ed Dept Rep 576, Decision No. 13,931). A willful violation or neglect of duty will be found where "a purpose or intent to disregard a lawful duty or to violate a legal requirement" exists (Application of Lombardo, 37 Ed Dept Rep 721, Decision No. 13,967; Application of Kozak, 34 id. 501, Decision No. 13,396). Although I note that petitioner contends that she refused to execute the documents because she believed that the board had acted illegally, on the record before me, I find no evidence that petitioner consulted with either the district’s attorney, or the Lackawanna Civil Service Commission, before reaching that conclusion. While I make no finding concerning the propriety of petitioner’s conduct, I remind petitioner that the refusal of the board president to execute documents necessary to effectuate a lawful board resolution may constitute a neglect of duty.

I have examined the parties’ remaining contentions and find them to be without merit.