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Decision No. 14,509

Application of FRANK DOWNING for the removal of Nancy B. Chase as Superintendent of the Hoosick Falls Central School District and for revocation of her license.

Decision No. 14,509

(December 21, 2000)

Gunter Dully, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner seeks the removal of Nancy B. Chase ("respondent") as Superintendent of the Hoosick Falls Central School District pursuant to Education Law "306. He also seeks revocation of respondent's certification as a school district administrator. The application must be denied.

Petitioner contends that respondent violated 8 NYCRR "83.1 by hiring Robert Johnson as the district's high school principal in July 1998 and then failing to notify the State Education Department ("Department") of his criminal record. Petitioner alleges that respondent also failed to notify the board of education about Mr. Johnson's criminal history, has not acted in good faith and lacks good moral character. Petitioner further requests that the Commissioner investigate respondent's actions and deny certification to pay her legal expenses pursuant to Education Law "3811(1)(c).

Respondent asserts that the application is untimely and fails to state a claim. She asserts that she had no legal obligation under 8 NYCRR Part 83, and that her actions were lawful and in compliance with applicable provisions of Executive Law "296 (prohibiting unlawful discrimination) and Correction Law, Article 23-A (prohibiting unfair discrimination against persons previously convicted of a crime). She requests that the Commissioner issue a certificate of good faith pursuant to Education Law "3811.

The appeal must be 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). The 30-day limitation period also applies to removal applications made pursuant to Education Law "306 (8 NYCRR "277.1; Appeal of Todd, 37 Ed Dept Rep 419, Decision No. 13,893).

Petitioner claims that respondent should have notified the Department of Mr. Johnson's convictions prior to or when she hired him in July 1998. In that scenario, petitioner's appeal is clearly time-barred since it was not commenced until June 15, 2000, almost two years after Mr. Johnson was hired.

Although the record is unclear, petitioner apparently only became aware of Mr. Johnson's criminal history in March 2000 when such information was made public. However, he still failed to file his appeal until more than three months after his discovery of respondent's alleged misconduct relating to Mr. Johnson's hiring, making his appeal untimely (Appeal of Akshar, 35 Ed Dept Rep 424, Decision No. 13,590).

To the extent petitioner is appealing the board of education's failure to act on community petitions to remove respondent, the appeal is also untimely. On April 18, 2000, a petition seeking respondent's removal (signed by 1136 individuals) and another seeking the removal of Mr. Johnson (signed by 956 individuals), were presented to the board. At its May 2, 2000, meeting, board president Daniel McMahon publicly rejected the petitions on the basis that the employment of school personnel is beyond the power of the voters to determine. Since the appeal was not commenced until 45 days later, on June 15, it must be dismissed as untimely.

Petitioner requests that his late appeal be excused. Petitioner met with Mr. McMahon on May 14, 2000, and claims that he was led to believe that the board would take action to remove respondent. He also claims that respondent's actions are ongoing and thus not subject to the 30-day limitation. Petitioner has failed to demonstrate good cause for his late appeal. To the extent that petitioner met with Mr. McMahon to solicit the board's reconsideration of the petitions previously submitted seeking respondent's removal, such meeting did not extend the time in which to commence an appeal (Appeal of Baselice, 39 Ed Dept Rep 387, Decision No. 14,268; Appeal of Schonfeld, 38 id. 306, Decision No. 14,040). Moreover, Mr. McMahon avers that while he met with petitioner on May 14, he at no time made a commitment to petitioner to remove respondent at the next board meeting. Furthermore, petitioner has failed to demonstrate the ongoing nature of respondent's actions. Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits. Education Law "306 authorizes the Commissioner of Education to remove a superintendent of schools for willful violation or neglect of duty under the law. A "willful" act is one intentionally done with a wrongful purpose to disregard a lawful duty or violate a legal requirement (People v. Skinner, 37 AD 44, aff'd 159 NY 162; Appeal of Todd, supra). Respondent contends that she acted in good faith and on the advice of counsel in considering the legality of hiring Mr. Johnson and the illegality of discriminating against him because of his prior criminal record. Petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR " 275.10; Application of Goldin, 39 Ed Dept Rep 14, Decision No. 14,158). Petitioner fails to establish that respondent took any action that was intentionally performed with a wrongful purpose to disregard a lawful duty or violate a legal requirement.

Mr. Johnson was convicted in February 1985 for embezzling funds from a school where he worked. According to the Department's records, following the conviction it was determined, pursuant to 8 NYCRR Part 83, that a substantial question existed as to Mr. Johnson's moral character, and his teaching certificate and school district administrator certificate were subsequently revoked in November 1985. In 1990, Mr. Johnson reapplied for certification. His teacher certification was reissued at that time, but reinstatement of his administrative certification was denied. In February 1991, he received a Certificate of Relief from Disabilities from the convicting court pursuant to Corrections Law "701. Such certificate is designed to remove any automatic bar to employment or licensure by reason of the prior conviction (Arrocha v. Board of Educ, 93 NY2d 361). Subsequently, Mr. Johnson reapplied for his administrative certificate, and in February 1993, the Department issued him certificates for business and distributive education and for school district administration, which qualified him for the position of high school principal. (See, Appeal of Allen and Wong, 40 Ed Dept Rep ___, Decision No. 14,501, which unsuccessfully challenged the granting of tenure to Mr. Johnson on June 29, 2000.) Since the Department had already reissued Mr. Johnson his teacher certification in 1993, respondent neither violated nor neglected any legal duty to report his 1985 conviction when she hired him in 1998.

Petitioner also claims that respondent concealed Mr. Johnson's background from the board of education. However, the record reveals that respondent informed then-board president Gordon Batchellor of Mr. Johnson's history, including both his conviction and his recertification, and Mr. Batchellor chose not to disclose that information to the remaining board members.

My authority to remove a superintendent under Education Law "306 is limited to situations where it is proven after a hearing that the superintendent has been guilty of a willful violation or neglect of duty under the Education Law, or willfully disobeys a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education. This petition contains neither sufficient allegations nor any proof of such actions.

With regard to petitioner's request for an investigation, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Baker, 39 Ed Dept Rep 690, Decision No. 14,350).

In view of the foregoing disposition, I need not address the parties' remaining contentions. With respect to respondent's request for a certificate of good faith pursuant to Education Law "3811(1), in view of the fact that petitioner's application for removal must be denied for the reasons set forth above, I certify that respondent appears to have acted in good faith.