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Decision No. 14,362

Application of JAMES E. FIX for the removal of Anthony Mastrobattisto from the Board of Education of the East Syracuse-Minoa Central School District.

Decision No. 14,362

(May 16, 2000)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondent, Norman H. Gross, Esq., of counsel

MILLS, Commissioner.--Petitioner James E. Fix, a resident of the East Syracuse-Minoa Central School District and a member of its board of education, seeks the removal of Anthony Mastrobattisto ("respondent") from the board. The application must be denied.

Respondent joined the board of education of the East Syracuse-Minoa Central School District in July 1991. He is currently the vice president of the board. Prior to becoming a member of the board, Mr. Mastrobattisto’s wife, Rosalie Mastrobattisto, had worked for the district for a number of years, beginning in 1979. In addition to her duties as communications facilitator, his wife became district clerk in the 1993-1994 school year. Mrs. Mastrobattisto’s association with the school district is the basis for this appeal. The facts of her association are found in Application of Fix, 39 Ed Dept Rep ______, Decision No. 14,361, and will not be repeated here.

On April 23, 1999, petitioner filed an ethics complaint with the district, claiming numerous violations by Mr. Mastrobattisto of the district’s code of ethics. Petitioner claims that the board, superintendent, and school attorneys have failed to investigate or otherwise act on his ethics complaint.

Petitioner alleges that respondent has a prohibited conflict of interest, because his wife is being paid with district funds as both district clerk and communications facilitator. He alleges that the board of education, with the exception of respondent, did not have knowledge of any of the contracts entered into by Mrs. Mastrobattisto prior to 1998, and did not approve them. He claims that respondent used his position as vice president of the board to obtain additional compensation and payment of expenses for his wife as communications facilitator. He also claims that respondent attempted to conceal his interest in his wife’s contracts by failing to disclose them. Petitioner further alleges that the acting superintendent entered into another contract with respondent’s wife on or soon after August 23, 1999, for continuation of her duties as communications facilitator, again without knowledge or approval of the board (however, no copy of that agreement is found in the record).

Respondent admits many of the basic facts alleged with respect to his wife’s association with the district, but denies any wrongdoing on the part of his wife or himself. Respondent points out that his wife’s July 21, 1998, agreement was signed by the president of the board, not the superintendent, and states that the board was fully aware at that time that Mrs. Mastrobattisto was his wife. Respondent further alleges that on September 30, 1999, the board approved a resolution that expanded the clerk’s duties to include the duties of the communications facilitator, and that that resolution was recommended by the acting superintendent and entered into upon the advice of counsel.

Respondent also asserts a number of affirmative defenses, including untimeliness, arguing that most of the events set forth in the petition occurred more than 30 days prior to the commencement of this appeal on September 30, 1999, and are therefore barred. Respondent also alleges that he personally relied on the advice of counsel with respect to the legality of the September 30, 1999, resolution, and that he abstained from voting on the same.

The appeal must be dismissed. This appeal was commenced September 30, 1999, and any actions allegedly taken by respondent more than 30 days prior to that date are untimely (8 NYCRR "275.16). Petitioner has not alleged any specific violations of law during those 30 days prior to commencement of the appeal.

In addition, it is well settled that a board member who acts on the advice of counsel is not engaged in wilful violation or neglect of duty that would justify removal under Education Law "306 (Application of Goldin, 39 Ed Dept Rep 14, Decision No. 14,158; Appeal of McCall, 34 id. 29, Decision No. 13,224; Appeal of Landgrebe, 32 id. 49, Decision No. 12,754). While the resolution of September 30, 1999, is not set forth in the petition, which was served on the same date, it is set forth in the answer and respondent’s claim that he acted on the advice of counsel is not contradicted, since petitioner has not served a reply.

Although I am compelled to dismiss this matter, I am concerned about the manner in which the purported position of communications facilitator has come into existence and evolved. I note for the district’s information, Civil Service Law "22 which provides:

Before any new position in the service of a civil division shall be created or any existing position in such service shall be reclassified, the proposal therefor, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such a commission shall furnish a certificate stating the appropriate civil service title for the proposed position or the position to be reclassified. Any such new position shall be created or any such existing position reclassified only with the title approved and certified by the commission.

Because the position of communications facilitator held by respondent’s wife apparently originated with a former superintendent in the form of a very brief contract, I am forwarding a copy of this decision, together with a copy of the decision in the companion appeal, to the Onondaga County Commissioner of Personnel for her information and review.