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Decision No. 14,275

Appeal of DEBRA INSTONE-NOONAN from action of the Board of Education of the Orchard Park Central School District and Richard McKenica, Ben Keller, Richard Jablonski and John Clark regarding a special meeting.

Decision No. 14,275

(December 21, 1999)

Hodgson, Russ, Andrews, Woods & Goodyear, LLP, attorneys for respondents, Karl W. Kristoff, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions taken by the Board of Education of the Orchard Park Central School District ("respondent board") and Richard McKenica, Ben Keller, Richard Jablonski and John Clark, members of the board, at a special meeting held on November 14, 1998, and the subsequent mailing of a press release to district residents. The appeal must be dismissed.

On November 12, 1998, respondent McKenica contacted the superintendent and requested that a special meeting be convened on November 14, 1998, although the next regular board meeting was scheduled for November 17, 1998. This request was made pursuant to board policy #1526, which permits any board member to call a special meeting. The superintendent's secretary contacted every board member on the afternoon of November 12, 1998, and a packet of materials including an agenda was delivered to each member that same day.

At the November 14 meeting, in executive session, the board examined the personnel folders of the finalists for a school nurse position. Upon returning to the public session, respondent Keller made a motion for the board to authorize a district press release containing an article written by respondents McKenica and Keller. A draft of the first part of the article, and a general outline for the remaining sections of the article, were provided to the board members at the meeting. Respondent board adopted the resolution by a vote of 4 to 3. The board next considered a motion by respondent Keller to require the superintendent to identify any district employees who need training concerning confidentiality requirements. This motion was prompted by perceived leaks of confidential information from previous executive sessions. Respondent board adopted this resolution by a vote of 4 to 3. An 8-page article, entitled "A Letter to the Taxpayers Who Reside in the Community" and attributed to respondents McKenica and Keller, was subsequently mailed to district residents on December 5, 1998, four days before a bond issue vote.

Petitioner raises a number of objections to the board's actions. First, she contends that the scheduling of the November 14, 1998 special meeting, the motion to go into executive session at the meeting, and the board's consideration of 2 motions added to the agenda at the meeting violated the Open Meetings Law. Second, petitioner contends that respondent board illegally approved the use of public funds to publish a press release that represents only the personal opinions of its authors, respondents McKenica and Keller. Third, petitioner asserts that the resolution regarding confidentiality training was an improper show of partisanship, because the resolution was allegedly prompted by leaks that appeared in publications that did not support the majority of board members, although this majority had allegedly ignored previous leaks supportive of those majority members. Petitioner additionally contends that the article mailed on December 5, 1998 violates the prohibition against using district funds to advocate for a particular issue or persuade voters to vote a particular way, and that the article contains false and misleading information. Petitioner requests that I find that the article violates the law, require respondents to reimburse the district for the cost of mailing the article, and reprimand respondents for their support of the mailing; that I determine that the November 14, 1998 meeting violated the Open Meetings Law; and that I admonish respondents for their partisan actions. A request for interim relief, to stay the mailing of the press release, was denied on December 4, 1998.

Respondents deny the claims raised by petitioner, and contend that the board has at all times acted in compliance with the law. Respondents assert that the press release was adopted as an official action and statement of the board by virtue of the majority vote approving the mailing, and thus did not constitute merely the personal opinion of one or two board members. Respondents maintain the press release was intended to restore the public's trust in the board as an institution by addressing recent criticisms against the board, and to decrease any potential negative impact that such criticism might have on public turnout for a bond issue vote on December 9, 1998. Respondents also aver that the resolution regarding confidentiality training is reasonable and nonpartisan, as it is not limited to any particular persons or incidents and gives the superintendent the discretion to identify persons who may need such training.

Although respondents assert that the November 14, 1998 meeting was convened in accordance with the Open Meetings Law and board policy, they maintain that I lack jurisdiction over alleged violations of the Open Meetings Law. 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 (seee.g., Appeal of Goldin, 38 Ed Dept Rep 317, Decision No. 14,043, and cases cited therein). Inasmuch as the Open Meetings Law governs the use of executive sessions, allegations regarding the improper use of executive sessions may not be the basis for an appeal to the Commissioner of Education (Application of Goldin, 39 Ed Dept Rep ___, Decision No. 14,158; Appeal of Lambert, et al., 37 id. 588, Decision No. 13,935; Appeal of Gwinner, 37 id. 262, Decision No. 13,854). Therefore, petitioner's allegations regarding the November 14, 1998 executive session motions and notice of meeting must be dismissed for lack of jurisdiction.

I must also address two other procedural matters. Respondents object to petitioner's reply, because the reply includes new substantive claims and a new exhibit. 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 to add belatedly 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). A portion of the reply raises new allegations regarding the Open Meetings Law claims raised in the petition. Thus, I will not consider that portion of the reply. However, the reply also contains a copy of the press release that was mailed on December 5, 1998, and raises claims about the content of the article. The full text of the article was not available until December 5, 1998, and the final version differs substantially from the draft disseminated at the November 14, 1998 meeting. Petitioner was thus unable to raise these claims until she had received the mailing (see, Appeal of Muench, 38 Ed Dept Rep 649, Decision No. 14,110; Appeal of Chechek, 37 id. 624, Decision No. 13,943). Accordingly, I will consider the claims raised by petitioner in her reply related to the content of the mailing.

Respondents also object to consideration of an undated, unsworn letter from petitioner mailed on or about March 26, 1999. This correspondence was not submitted in accordance with "276.5 of the Commissioner's regulations and therefore is not part of the record and will not be considered in this appeal.

The remaining contentions must be dismissed. I have reviewed the press release that was mailed to district residents on December 5, 1998. The first 2 pages of the 8-page article appear to be a diatribe by respondent McKenica as to his personal feelings, and those of his wife who had applied for a school nurse position, regarding the district's hiring practices. This issue was not mentioned in the draft that was provided to board members on November 14, 1998, and the final letter does not even begin to address the issues raised in the draft until the bottom of page 3. I am concerned about the extremely personal nature of some of the comments expressed by respondent McKenica in these first 2 pages, published at public expense and not attributed to or alleged to be reflective of board sentiment. The board's resolution authorized a press release that purported to discuss the board's activities and respond to critics, not a personal expression of outrage by the board president as to how his wife and he had been treated.

Taking the press release as a whole, however, the article carries out the board's purpose of providing a report to district residents as to the board's accomplishments and goals, and a response to the board's critics. The statements in the bulk of the letter are attributed to the board as a whole, rather than any individual member, and express the board's opinions and reasons for its actions. Although a minority of board members objected to the actions taken by the majority, a board of education as a corporate body acts through resolutions or motions adopted or passed by a majority of the board (Education Law "1701; Matter of Dean, 27 Ed Dept Rep 206, Decision No. 11,921; Appeal of Ascher, 12 id. 97, Decision No. 8549).

Petitioner further objects to the mailing on the grounds that the document contains false and misleading information, and that some of the statements in the document are designed to persuade voters to support the bond issue in violation of Phillips v. Maurer, 67 NY2d 672 (1986). However, petitioner does not contend that any particular harm resulted from the alleged misinformation or that the statements in the mailing affected the results of the bond vote, nor does petitioner seek to have the results of the bond vote set aside. She is, in effect, merely seeking an advisory opinion concerning the contents of the mailing. The Commissioner does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Weiss, 39 Ed Dept Rep ___, Decision No. 14,176; Appeal of Lambert, 37 id. 599, Decision No. 13,937; Appeal of a Student with a Disability, 37 Ed Dept Rep 307, Decision No. 13,864). These contentions must therefore be dismissed.

I am also not persuaded that the board's second resolution, to require the superintendent to identify persons in need of confidentiality training, is invalid because of alleged bias or partisanship. Irrespective of the discussion at the special meeting as to the reasons for such resolution, there is nothing about the resolution which targets the superintendent's obligation to only one political or philosophical group. In the wake of a number of apparent leaks of confidential information from executive session discussions, it is certainly reasonable for the board to direct its superintendent to investigate and determine whether any district employees need further training in confidentiality issues to prevent such leaks in the future.

In sum, after carefully reviewing the record of this appeal, I do not find respondents' actions in issuing the press release, and directing the superintendent to identify persons in need of confidentiality training, arbitrary or capricious. However, while the press release as a whole appears to be an expression of board sentiment, authorized by a majority vote of the board, it also contains statements that appear to primarily articulate the personal opinions of an individual board member. I, therefore, caution respondents to carefully monitor future press releases and other publicly funded vehicles for the dissemination of school district information from the board, to ensure that such communications focus on legitimate matters of public concern.