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Decision No. 14,252

Application of JAMES LEMAN and PETER SLUYS for the removal of Fletcher J. Johnson, William J. Griffin, Carmine Delisio, Georgine Hyde, Eugene Polinsky, Gerard Sheridan, Christine Webb, Audrey Youngelson, as the Board of Trustees of the Rockland County Board of Cooperative Educational Services, and James Ryan, as Assistant Superintendent for Educational Services.

Decision No. 14,252

(November 24, 1999)

Greenberg, Wanderman & Fromson, Esqs. and O'Connell & Riley, Esqs., attorneys for respondents, Stephen M. Fromson, Esq., of counsel

MILLS, Commissioner.--Petitioners seek the removal from office of the members of the board of trustees of the Rockland County Board of Cooperative Educational Services ("BOCES") and James Ryan, the BOCES assistant superintendent for educational services. The application must be dismissed.

Petitioners allege three specific incidents of misuse of and failure to protect public funds by respondents. Petitioners first claim that respondents authorized an improper, illegal payment of $50,000 for public relations and consultant services related to a Center for Science and Environmental Learning on Clausland Mountain ("Clausland Mountain project"), which the South Orangetown Central School District ("SOCSD") sought to establish. Petitioners do not provide a date of the alleged payment, but the record reflects that respondent Ryan prepared a memorandum dated November 12, 1993, which addressed several issues regarding the affiliation of the Clausland Mountain project with BOCES, and which included a reference to the person identified by petitioners as the consultant. Respondents deny this allegation, without providing any information regarding the existence of a contract with the consultant or whether a payment of $50,000 was made to the consultant, but assert that the Clausland Mountain project was approved by the State Education Department as a cooperative service. Respondents further contend that the SOCSD is a necessary party with respect to this allegation.

In their second claim, petitioners allege that a BOCES employee misused taxpayer funds and equipment in 1996 and 1997, but, after an investigation, respondents permitted the employee to resign without prosecution or restitution. Petitioners contend that respondents permitted a waste of public funds by failing to account for and recover the funds allegedly misused by the employee. Respondents assert that there is no documentation in the employee's personnel record which would lead to a finding of misuse of taxpayer funds or equipment, that respondent board accepted the employee's resignation by resolution dated January 1998, and that the former employee is a necessary party to this proceeding.

Petitioners' third claim concerns the State Education Department's audit of BOCES for the period July 1, 1994 through June 30, 1995. The Department issued its audit report on August 4, 1997. Petitioners allege that the audit report was critical of respondents' use of taxpayer funds and management of BOCES, and contend that failure to recover wasted funds is a violation of the Education Law. Respondents concede that the audit report found some areas where BOCES could improve its policies and procedures regarding travel and conference expenditures, but assert that BOCES subsequently developed a plan for reimbursement of identified misspent funds. As of the date of the answer, $555.87 of a total of $988.23 had been recovered.

Respondents raise several procedural objections. First, respondents object to the reply filed by petitioners, but ask that I consider their sur-reply if accepted. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress allegations in the petition or add assertions or exhibits that should have been in the petition (Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077; Appeal of Thompson, 34 id. 134, Decision No. 13,259). Petitioners' reply responds to defenses raised by respondents, but also contains additional facts in support of their contentions in the petition. Therefore, while I have reviewed petitioners' submission, I have not considered those portions of ""3-4, 6-13, 15 and 20 containing new allegations that are not responsive to new material or affirmative defenses in the answer. Accordingly, I have not considered the sur-reply filed by respondents.

Respondents question whether a petition in the nature of a taxpayer action may be filed against a BOCES operated pursuant to Education Law "1950. It has previously been recognized, however, that "306 applies to members of BOCES boards (Matter of Appeal against BOCES, Third Supervisory District, Suffolk County, et al., 32 Ed Dept Rep 519, Decision No. 12,905; Application of Nugent, 21 id. 251, Decision No. 10,670).

Respondents additionally contend that the petition is untimely in whole or in part, that the petition fails to establish any grounds for removal under Education Law "306, that "306 is inapplicable to respondent Ryan in his position as assistant superintendent, and that the former BOCES employee and the SOCSD are necessary parties to this appeal. An appeal to the Commissioner of Education pursuant to Education Law "310 or application for removal pursuant to Education Law "306 must be commenced within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR ""275.16 and 277.1). An application for removal pursuant to Education Law "306 may also be timely commenced within 30 days of the petitioner's good faith discovery of alleged misconduct or misuse of funds, even though the actual conduct occurred more than 30 days before the application was instituted (Matter of Appeal against BOCES, Third Supervisory District, Suffolk County, et al., supra). Petitioners commenced this proceeding by service on March 11 and 18, 1998. Petitioners' first claim arises out of an alleged payment of $50,000 to a consultant in connection with the Clausland Mountain project, in approximately 1993, five years prior to commencement of this proceeding. Petitioners do not argue that they were unable in good faith to discover the facts underlying the claim until the 30-day period prior to commencing this application. This claim is thus dismissed as untimely.

The second claim alleges that a BOCES employee misused public funds and equipment during 1996 and 1997. Petitioners claim that respondents violated the Education Law by accepting the employee's resignation in January 1998, failing to refer the matter to the District Attorney for prosecution, and failing to recover allegedly wasted funds. The claim related to accepting the employee's resignation is time-barred, as this application was initiated more than 30 days after respondents' public resolution accepting the resignation, but the record does not reflect the date of any specific discussions or decisions not to refer the matter for prosecution or not to seek recovery of funds, if indeed any such decisions were made. Given the fairly close time period between the resignation and commencement of this proceeding, lack of public determinations concerning prosecution or recovery, and no claim of prejudice by respondents, I decline to dismiss the application insofar as it alleges a failure to seek prosecution or recovery for alleged misuse of public funds.

The third claim arises out of an audit completed in August 1997, for fiscal practices that occurred during the 1994-95 school year. Again, petitioners do not contend that they were unable to discover the facts underlying this claim until the 30-day period prior to commencement of their "306 application. Accordingly, this claim is dismissed as untimely.

The remaining, timely portion of the second claim must be dismissed on the merits. In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Robert D. and Barbara D., 38 Ed Dept Rep 18, Decision No. 13,975; Appeal of Acme Bus Corporation, 37 Ed Dept Rep 219, Decision No. 13,848). Petitioners have not met this burden.

Petitioners claim that respondents failed to take appropriate action to prosecute a former employee who allegedly misused public funds and property, and violated the Education Law by failing to recover the alleged misused funds. However, the record before me fails to establish a necessary prerequisite - that the alleged misconduct actually occurred. Petitioners present only vague, conclusory statements regarding the alleged misconduct, with no factual proof or substantiating documentation of any wrongdoing. This utter lack of evidence forecloses any finding that there was misuse of public funds or equipment by any BOCES employee (See, Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142; Appeal of Prentice, 38 id. 736, Decision No. 14,130), and thus renders moot the question of what action respondents should have taken in response to the alleged wrongdoing.

In view of the foregoing disposition, I need not address the parties' remaining contentions. With respect to respondents' request for a certificate of good faith pursuant to Education Law "3811(1), in view of the fact that petitioners' application for removal must be denied for the reasons set forth above, I certify that respondents appear to have acted in good faith.