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Decision No. 14,297

Application of JOHN FONTANA for the removal of Frank Greiner as a member of the Board of Education of the East Syracuse-Minoa Central School District.

Decision No. 14,297

(January 31, 2000)

Crossett & Mevec, attorneys for respondent, Danny Louis Mevec, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the East Syracuse-Minoa Central School District ("respondent") which found that board member Frank Greiner did not violate the district's Code of Ethics. Petitioner seeks Mr. Greiner's removal from the board. The appeal must be dismissed.

Petitioner is the girl's varsity basketball coach at East Syracuse-Minoa High School. During the 1998-99 school year, Mr. Greiner's daughter was a member of that team. On January 25, 1999, Mr. Greiner asked respondent's athletic director, William McEachron, to arrange a meeting between petitioner and Mr. Greiner to discuss his daughter's playing time. On January 27, 1999, petitioner met with Mr. Greiner and Mr. McEachron. At that meeting, petitioner offered a fairly critical assessment of Mr. Greiner's daughter's basketball skills as a basis for her lack of playing time. After some discussion, Mr. Greiner left the meeting, but returned shortly thereafter. Petitioner claims that when he returned, Mr. Greiner threatened him, called him an expletive and stated that he was going to bring petitioner before a superintendent's hearing. Mr. McEachron tape-recorded the first part of the meeting without Mr. Greiner's knowledge, but not the part after Mr. Greiner returned to the office. Mr. Greiner later spoke to several members of the basketball team.

On January 29, 1999, petitioner filed a harassment complaint against Mr. Greiner with the Town of Manlius Police Department. Over the weekend following the meeting, Mr. Greiner went to petitioner's house and apologized for his behavior. After an investigation by the police and a review by an Onondaga County Assistant District Attorney, the case was closed because the facts were contradicted and it was determined that Mr. Greiner's actions did not warrant criminal action. Petitioner then filed an ethics complaint with respondent against Mr. Greiner based upon alleged violations of the district's Code of Ethics.

A hearing was held before respondent's superintendent on March 11, 1999 at which petitioner appeared with his attorney. On March 22, 1999 the superintendent issued his findings of fact and recommendations to respondent. His report stated that Mr. Greiner had acted as a parent, not a board member, and that his actions had not violated the district's Code of Ethics. The superintendent also questioned the credibility of petitioner's testimony at the hearing. Respondent then formed a three-member ethics panel ("the panel") to review the superintendent's findings. The panel consisted of the principal of a local Catholic high school, a former member of respondent board and a member of respondent's administrative staff. On March 31, 1999 the panel issued its findings, which were essentially the same as the superintendent's. On April 8, 1999, respondent reviewed the panel's findings and adopted them. This appeal ensued.

Petitioner contends that Mr. Greiner's conduct during the meeting and his subsequent phone calls to the basketball players constitute unethical acts by a board member. Petitioner alleges that Mr. Greiner attempted to undermine petitioner by speaking to his players. Petitioner further alleges that the hearings were biased and manipulative. Petitioner asks that Mr. Greiner be removed from his position on the board.

Respondent contends that the appeal is untimely, fails to state a claim upon which relief can be granted and that the claim is frivolous and unfounded.

As a threshold matter, the appeal must be dismissed for failure to join a necessary party. Petitioner seeks the removal of Mr. Greiner. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Heller, 38 id. 335, Decision No. 14,048). Section 275.8 of the Commissioner's regulations requires that a copy of the petition be personally served upon each named respondent. An individual must also be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Lawson, supra). In this case petitioner has not named or served Mr. Greiner. Accordingly, the appeal must be dismissed.

Even if it were not dismissed for failure to join, it would be dismissed on the merits. Petitioner has failed to establish facts sufficient to warrant removal of Mr. Greiner from the board. In an appeal to the Commissioner, 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 Logan, 38 Ed Dept Rep 694, Decision No. 14,120). Education Law "306 authorizes the Commissioner to remove a member of the board of education for a willful 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 willful, the board member's actions must have been intentional and with a wrongful purpose (Application of Cobler, supra; Application of Borges, supra). The transcript of the tape-recorded meeting and the testimony at the hearing show that Mr. Greiner announced at the outset of the meeting that he was present solely in his capacity as a parent. Petitioner has not presented any evidence, other than his own statements, to show how Mr. Greiner's alleged actions violated the district's Code of Ethics or willfully or intentionally violated the law.

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