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Decision No. 14,474

Application of MARK L. BALEN for the removal of John Makeyenko, M. Elaine Mandy, Kenneth Motyka, Edward Piotrowski, as members of the Board of Education of the City School District of the City of Lackawanna, Nellie B. King, as Superintendent of Schools, and Carl W. Morgan, as school attorney.

Application of MARK L. BALEN for the removal of Kenneth Motyka, as a member of the Board of Education of the City School District of the City of Lackawanna.

Decision No. 14,474

(October 12, 2000)

Carl W. Morgan, Esq., attorney for respondents

Magavern & Rich, LLP, attorneys for respondent Motyka, George F. Rich, Esq., of counsel

MILLS, Commissioner.--In two separate applications pursuant to Education Law "306, petitioner seeks the removal of various school officials as well as the school attorney. At the time these applications were commenced, petitioner was a member of the Board of Education of the City School District of the City of Lackawanna ("the board").

In the first application ("Balen I"), petitioner seeks the removal of various board members and the Superintendent of Schools of the City School District of the City of Lackawanna ("the district"), as well as the "removal" of the school attorney based on a broad array of allegations. In the second application ("Balen II"), petitioner seeks the removal of respondent Motyka from the board on the grounds that he released confidential information from the investigative report that ultimately led to petitioner’s removal from the board. Because the applications involve a common issue of law, they are consolidated for decision. The applications must be denied.

Preliminarily, it bears mentioning that these appeals reflect the chronic infighting and discord that persists among the members of the board of which I recently commented in Appeal of Kozak, et al., 40 Ed Dept Rep , Decision No. 14,459, dated September 12, 2000. The instant appeals are examined against this backdrop.

Balen I:

In Balen I, petitioner details a number of incidents that occurred over a period of approximately one year that he contends warrant respondents’ removal. Although petitioner’s 144 paragraph petition raises a broad array of issues, it is apparent that many of the allegations concern events that occurred more than 30 days before petitioner commenced this appeal. The bulk of the remaining allegations pertain to events that occurred during the board’s February 17, 1999 meeting.

As to that meeting, petitioner complains, among other things, that the board used omnibus motions to vote on a number of items simultaneously and thereby deprived members of the board minority of their rights pursuant to Education Law "2503 "by limiting/eliminating such members from debate and their ability to vote intelligently". He also contends that respondents refused to publicly read various letters submitted by him and tabled certain items that were on the agenda. Petitioner is also critical of the performance of respondent King, superintendent of schools. Petitioner claims that respondent King and respondent board members have engaged in an "organized conspiracy to deter Petitioner from efficiently and effectively performing [his] duties as a Board Member …". Petitioner also alleges that respondent Makeyenko has engaged in a longstanding pattern of threatening and insulting petitioner and at the February 17, 1999 meeting threatened to "break Petitioner’s good leg soon". For relief, petitioner seeks, among other things, respondents’ removal.

Respondents assert that petitioner’s allegations fail to establish a willful violation of law or neglect of duty. They explain that petitioner has become increasingly hostile toward the board majority and refuses to attend the board’s work sessions, and instead, submits communications to the board at its regular meetings. Although respondent Makeyenko generally denies petitioner’s allegation that he threatened to break petitioner’s leg, Makeyenko offers no evidence to counter petitioner’s allegation. Respondent Morgan does acknowledge, however, that there is a long history of animosity between petitioner and respondent Makeyenko. Respondents contend that the instant appeals are an attempt by petitioner to deflect attention from the ongoing investigation into his possible misconduct. Respondents also allege, among other things, that the appeal is untimely and that I lack the authority to grant the relief requested.

Balen II:

On or about March 2, 1999, the board voted to hire an attorney to investigate possible misconduct by petitioner. During an executive session held on August 12, 1999, the board obtained the results of the attorney’s investigation and passed a resolution directing the attorney to file and serve written charges of official misconduct against petitioner. The resolution also acknowledged that "the Investigation Report of a Board Member is Confidential". Petitioner submits an affidavit from Steven P. Hetey and Diane M. Kozak, two of his former colleagues on the board, who allege that at the special meeting that followed the executive session, respondent Motyka "blurted" out "something to the effect that ‘Mr. Balen cannot tell individual employees what to do, can’t write letter (sic) to parents on his own’". Petitioner apparently contends that this statement violated district policy 6110 and General Municipal Law "805-a(1)(b), both of which prohibit board members from disclosing confidential information acquired during the course of their official duties. Petitioner maintains that respondent’s actions were designed to publicly embarrass him.

Although respondent Motyka denies releasing the special counsel’s investigate report, he acknowledges that he did discuss during the public session certain allegations made against petitioner that had previously been discussed in open session. He explains that his comments were in response to an accusation by then-board member Diane Kozak that the board was acting in bad faith in bringing charges against petitioner. Respondent also claims that I lack jurisdiction over him because petitioner never properly served his petition.

I find that Balen I must be partially dismissed as untimely. An appeal to the Commissioner must be instituted 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; Appeal of Alexander, 38 Ed Dept Rep 265, Decision No. 14,232). Petitioner commenced the appeal by serving his petition on respondents on March 18, 1999. Accordingly, I find that the appeal is untimely to the extent that it challenges events that occurred prior to February 16, 1999.

I also note that a school attorney is not an officer of the district and is therefore not subject to removal from office by the Commissioner of Education (Application of Rojek and Spadone, 24 Ed Dept Rep 434, Decision No. 11,453; Application of Sterling, 23 id. 294, Decision No. 11,223). Accordingly, the appeal must be dismissed as against respondent Morgan.

Balen II must be dismissed on procedural grounds. An appeal before the Commissioner of Education must be initiated by personal service of the petition upon each named respondent or "if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion …"(8 NYCRR "275.8(a); Appeal of Ponella, 38 Ed Dept Rep 610, Decision No. 14,103). Petitioner submits an affidavit from his wife stating that she served respondent with the petition by mail after attempting unsuccessfully to personally serve him "in the early afternoon and evening" on three consecutive days. This service by mail was ineffectual. Although the regulation permits service of a petition on a person of suitable age and discretion at the respondent’s residence where the respondent cannot be found, there is no authority for alternative service by mail, absent express authorization from the Commissioner. Accordingly, the appeal must be dismissed.

Both appeals must also be dismissed on the merits. 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 Cobler, 35 id. 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).

Petitioner’s allegations in Balen II fail to establish any willful violation of the law, neglect of duty or willful disobedience of a decision, order or regulation of the Commissioner. General Municipal Law "805-a(1)(b) prohibits a school board member from disclosing confidential information acquired in the performance of official duties or use of such information to further his or her personal interests. Although a board member’s disclosure of confidential information obtained at an executive session of a board meeting would violate General Municipal Law "805-a(1)(b) (Appeal of the Board of Education of the Middle Country Central School District, 33 Ed Dept Rep 511, Decision No. 13,132; Appeal of Henning and Rohrer, 33 id. 232, Decision No. 13,035), petitioner has failed to establish that respondent made such a disclosure.

Respondent Motyka explains that his comments during the public session of the special board meeting held on August 12, 1999 were in response to board member Kozak’s accusation that the board was acting in bad faith in seeking petitioner’s removal and were based on information that had previously been disclosed in public. While respondent Motyka’s comments may have been better left unsaid, petitioner has failed to establish either that respondent Motyka disclosed confidential information, or that the alleged disclosure was willful. This same conclusion applies to petitioner’s claim that respondent Motyka violated district policy 6110, which essentially contains the same prohibition against the release of confidential information as contained in General Municipal Law "805-a(1)(b).

Petitioner has similarly failed to establish any basis for removal of respondent board members or respondent King in Balen I. If petitioner’s allegation that respondent Makeyenko threatened to "break Petitioner’s good leg soon" is true, it is reprehensible and unbecoming of a board member. However, the only evidence in the voluminous record of this incident is petitioner’s single sentence unsupported allegation of this threat and respondent Makeyenko’s general denial thereof. I find this evidence insufficient to establish that the threat occurred. Moreover, although removal may be warranted where a board member’s conduct occurs during a board meeting and disrupts the meeting or interferes with the board’s ability to function (Application of the Board of Education of the Lawrence Union Free School District, 39 Ed Dept Rep 523, Decision No. 14,299; Application of Kozak, 34 id. 501, Decision No. 13,396), there is no evidence in the record that the threat attributed to petitioner had such effect. Further, although petitioner also alleges that respondent Makeyenko engaged in a longstanding pattern of abusive and threatening behavior, and cites three incidents that occurred between November of 1997 and December of 1998, these allegations do not establish a continuing course of conduct by respondent so as to render them timely (Application of the Board of Education of the Lawrence Union Free School District, supra). Moreover, I observe that petitioner is not without blame for the hostile atmosphere that pervades the board.

Although I find the proof insufficient, I remind respondent Makeyenko that a board member’s use of threatening and abusive behavior is highly offensive and inappropriate and undermines public confidence in the board’s ability to manage the affairs of the school district. I strongly urge respondent to refrain from such behavior in the future and warn him that continuing instances of such conduct may constitute grounds for removal.

Nor do petitioner’s remaining allegations establish grounds for any of respondents’ removal. Petitioner has failed to establish that the board’s use of omnibus motions to consider multiple agenda items at once violated any law, rule, order or regulation of the Commissioner, or was otherwise improper. Respondents explain that tabling agenda items and using omnibus motions are mechanisms that have been employed by the board for many years, and were employed on February 17, 1999 for legitimate purposes. Petitioner’s conclusory assertions to the contrary do not establish a basis for respondents' removal. I similarly find no merit to petitioner’s remaining allegations of wrongdoing.