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Decision No. 14,510

Application of THE BOARD OF EDUCATION OF THE WAPPINGERS CENTRAL SCHOOL DISTRICT for removal of Joseph Incoronato as a member of the board.

Decision No. 14,510

(December 21, 2000)

Raymond G. Kuntz, P.C., attorneys for petitioner, Raymond G. Kuntz, Esq., of counsel

MILLS, Commissioner.--The Board of Education of the Wappingers Central School District ("petitioner") seeks to remove board member Joseph Incoronato ("respondent"), because of his alleged unauthorized disclosures of confidential information on three occasions in March 2000. The application must be denied.

Respondent was first elected to the board of education in 1997, and was re-elected for a second term on May 16, 2000, during the pendency of this appeal.

The petition recites a long history of alleged acts of misconduct by respondent, most of which deal with the unauthorized release of confidential information. The most recent events dealt with in the petition occurred in March 2000. The petition alleges that on March 20, 2000, respondent sent an e-mail to various State officials, including the Governor, a Senator, an Assemblyman, and the State Comptroller, in which he quoted extensively from a memorandum containing legal opinions prepared by petitioner’s former attorneys on March 15 for exclusive distribution to board members. The petition further alleges that at some time between March 24 and March 27, respondent shared privileged communication or information contained in another memorandum containing legal opinions prepared by petitioner’s former attorneys on March 24 with an individual who was not a member of the board and was not authorized to receive it. Finally, the petition alleges that on March 27, at a public meeting, respondent "intentionally and without authority violated Petitioner’s attorney-client privilege by stepping up to the public microphone and discussing the content of the March 24, 2000 legal opinion provided by Petitioner’s attorney."

Four weeks later, on April 24, 2000, petitioner by formal resolution authorized this appeal pursuant to Education Law "306 for respondent’s removal based upon these three most recent incidents, which are specifically set forth in the resolution. Petitioner’s former attorneys commenced this appeal by personal service on respondent on May 2, 2000.

Pursuant to 8 NYCRR "275.16, an appeal to the Commissioner of Education must be instituted within 30 days "from the making of the decision or the performance of the act complained of." The regulation further provides: "The commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown. The reasons for such failure shall be set forth in the petition."

The petition acknowledges that the commencement of this appeal on May 2 was not timely with respect to any of the three events in March 2000. The only excuse for late commencement found in the petition, which was verified by a board member on May 1, is this statement: "The appeal is being submitted on May 1, 2000 due to a death in the family of Petitioner’s attorney on April 25, 2000."

The appeal must be dismissed as untimely. With respect to respondent’s alleged misconduct on March 20, 2000, any claim was already time-barred as of April 19, prior to the time petitioner even authorized this appeal on April 24. In that regard, this appeal is untimely.

With respect to respondent’s alleged misconduct on "or about or between March 24 and March 27, 2000," petitioner apparently has no way (assuming such conduct occurred) of proving when it occurred. If it occurred on March 24 or 25, an appeal would have to be commenced, not merely authorized, no later than April 24 (April 23 was a Sunday). If petitioner could prove that it occurred on March 26 or 27, an appeal would have to be commenced by April 25 or 26, and it was not. With respect to respondent’s alleged misconduct at a public meeting on March 27, any appeal would have to be commenced by April 26, and it was not.

In March and April of this year, and throughout the entire period of respondent’s membership on the board, petitioner was represented by a law firm consisting of seven attorneys, together with an eighth attorney "of counsel." I have no reason to doubt that a death occurred in the family of one of those attorneys, the attorney most familiar with this matter, on April 25. However, I do not find that to be an adequate reason to exercise my discretion to excuse late commencement of this appeal. No information has been provided in the record as to the identity of the deceased, degree of relationship to the attorney, whether travel outside the area was required, or, indeed, any relevant information. In addition, there is no explanation as to why one or more of the other seven lawyers in that firm could not handle this appeal. (See, e.g., Application to Reopen the Appeal of R. S., 38 Ed Dept Rep 419, Decision No. 14,065, where an injury to one of two associated attorneys was held not to be good cause to excuse late filing.)

What is most significant, however, is the delay brought about by petitioner itself in waiting 28 days after the latest-occurring event to authorize this appeal (from March 27 to April 24), leaving only two days to prepare and commence the appeal. I find no excuse for this delay, and I question whether the appeal could have been timely commenced, even as to allegations of misconduct on March 26 or 27, even if no death had occurred.

In view of this disposition, it is unnecessary to discuss the parties’ other arguments, which I find to be without merit.

Although I am constrained to dismiss this appeal for untimeliness, I point out to both petitioner and respondent that the disclosure of confidential information acquired in the course of a board member’s official duties violates General Municipal Law "805-a(1)(b). A board member who violates this provision is subject to fine, suspension, or removal from office (See, e.g., Application 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).