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Decision No. 14,459

Application of DIANE M. KOZAK and STEVE P. HETEY for the removal of John Makeyenko, M. Elaine Mandy, Kenneth Motyka and Edward Piotrowski as members of the Board of Education of the City School District of the City of Lackawanna.

Decision No. 14,459

(September 12, 2000)

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

MILLS, Commissioner.--Petitioners seek the removal of certain members of the Board of Education of the City School District of the City of Lackawanna. The application must be denied.

Petitioners are members of the Board of Education of the City School District of the City of Lackawanna. At the board’s August 18, 1999 meeting, Nellie B. King, the superintendent of schools, sought the board’s approval to hire more than thirty teachers. One of the candidates recommended by Superintendent King was William P. Still. When the motion to appoint Still was made, petitioner Kozak revealed that Still was related to her by marriage, but declined to elaborate on the exact nature of the relation. The board then voted on the appointment with respondents Makeyenko, Mandy, Motyka and Piotrowski favoring and petitioners opposing it. Although respondent Motyka, the board president, announced that the motion had passed, petitioner Kozak countered that it had failed, but her attempt to explain the basis for that conclusion was partially frustrated by respondent Motyka’s repeated pronouncements that petitioner Kozak was "out of order". The board then moved on to other business. The official minutes from the meeting reflect that the motion to appoint Still as a probationary teacher had carried. Still apparently was notified of the appointment and commenced teaching in the district at the beginning of the 1999-2000 school year.

Subsequent to the meeting, petitioner Kozak sent a letter to Superintendent King and copied, among others, Carl W. Morgan, the board’s attorney, explaining that Mr. Still’s mother is her husband’s first cousin. Petitioner Kozak maintained that Still’s appointment was illegal because Education Law "3016(2) requires the consent of two-thirds of the board members to hire as a teacher the relative of a board member, and only four of the seven board members had approved the appointment.

By letter dated September 29, 1999, Morgan informed the board and Superintendent King that he agreed with petitioner Kozak’s interpretation of Education Law "3016(2) and advised that they convene a special meeting to terminate the appointment. At a special meeting held on September 30, 1999, the board unanimously voted to rescind Still’s contract. This application for respondents’ removal ensued.

Petitioners contend that respondents knowingly and willfully violated Education Law "3016(2) by appointing Still as a probationary teacher. Petitioners request that I remove respondents from office. Relying on Education Law "3017, petitioners also request that I order respondents to reimburse the district for any salary paid to Still and to pay Still for any work performed for which he has not been paid by the district.

Respondent Motyka explains that, although he was aware that Education Law "3016(2) requires a two-thirds vote of the board to appoint a relative of a board member to a teaching position, he was uncertain as to the exact nature of the relationship between petitioner Kozak and Still and whether this provision applied under the circumstances. In addition, he asserts that the "adversarial relationship" that has developed over the past year between petitioners and respondents led him to question petitioner Kozak’s claim that she was related to Still. He explains that after petitioner Kozak revealed the precise nature of the relationship in her September 21, 1999 letter, and upon the advice of counsel, the board rescinded the appointment at a September 30, 1999 special meeting. The remaining respondents explain that they voted in favor of the Still appointment upon the recommendation of the superintendent, and that the board rescinded the appointment after learning from counsel that it was improper. Respondents also claim, among other things, that I lack authority to grant the relief requested by petitioners.

Preliminarily, I will address two procedural matters raised by petitioners in their reply papers. Petitioners contend that respondents’ answer is defective because it is verified by counsel, rather than by respondents. In addition, they claim that respondents’ affidavits are improper because they are neither signed nor verified. Section 275.5 of the Commissioner’s regulations provides that where an appeal is brought from the action of the trustee or the board of trustees or board of education of a school district, verification of the answer shall be made by any person who is familiar with the facts underlying the appeal. Accordingly, I find that verification of the answer by counsel is proper. As to respondents’ affidavits, the original affidavits submitted to my Office of Counsel are, in fact, signed and notarized even though the copies sent to petitioners did not contain the original signed and notarized signature. Accordingly, I find that the affidavits are proper. However, counsel is advised that, in the future, exact copies of all pleadings should be served on the opposing party.

Petitioners have failed to establish facts sufficient to warrant the removal of respondents pursuant to Education Law "306. A member of the board of education may be removed from office pursuant to Education Law "306 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 Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Bushman, 37 Ed Dept Rep 576, Decision No. 13,931; Application of Cleveland and Bedell, 36 id. 482, Decision No. 13,781; Application of Bushman, supra; Application of Cobler, 35 Ed Dept Rep 176, Decision No. 13,506). To be considered willful, respondents' actions must have been intentional and with a wrongful purpose. In an appeal to the Commissioner of Education, the petitioners have the burden of demonstrating a clear legal right to the relief requested (8NYCRR "275.10) and the burden of establishing the facts upon which they seek relief (Appeal of Chichester, 39 Ed Dept Rep 470, Decision No. 14,286).

Respondents did not violate the law by voting in favor of the Still appointment. The Education Law does not prohibit a board of education from employing a relative of a board member, but simply requires the approval of two-thirds of the board to do so. Although respondent Motyka erred in concluding that the motion had passed because the approval of four board members did not satisfy the statutory requirement set forth in Education Law "3016(2), there is no evidence that Motyka acted willfully in doing so. Respondent Motyka explains that he was uncertain as to the exact nature of the relationship between petitioner Kozak and Still and whether it triggered the two-thirds approval requirement contained in Education Law "3016(2). Once the board was advised by counsel that the appointment was illegal, the board acted swiftly to rescind the appointment. In addition, there is no evidence that respondent Motyka had any personal interest in ensuring Still’s appointment that would motivate him to ignore this statutory requirement.

I also find that petitioners are not entitled to the remainder of the relief they seek. Education Law "3017 simply provides that where a teacher has been employed in disregard of Education Law "3016, he or she may enforce the contract against the board members individually. This provision does not give the Commissioner of Education authority to order such relief in favor of the unlawfully appointed teacher in the context of a removal proceeding. Moreover, it is well established that the Commissioner of Education has no authority to award damages or direct individual board members to make restitution to the district for allegedly illegal expenditures (Appeal of Calhoun, 38 Ed Dept Rep 542, Decision No. 14,089).

Finally, I must observe that the history of dissention among the members of the Lackawanna Board of Education is well documented by the numerous applications commenced in the recent past by one or more board members accusing various board members of wrongdoing. The record before me illustrates all too well how tension on the board interferes with the board’s ability to govern the affairs of the district. The mistrust and animosity has risen to the level where members are reluctant to believe the assertion of a fellow board member that she is related to a prospective teacher, and the board president is unwilling to allow a fellow board member to explain the basis for her belief that a motion has failed. Although the parties blame each other for the current unfortunate atmosphere, both petitioners and respondents must bear responsibility for it. There can be no question that the mistrust and accusations do a disservice to the community that the board seeks to serve. I urge both parties to make a serious effort to eliminate the crippling divisiveness that permeates the board so that the board can focus on the responsibility to which the public has entrusted it-- managing the affairs of the district to ensure the educational welfare of district students.

In light of this disposition, I decline to address the parties’ remaining contentions.