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Decision No. 14,515

Application of LISA CAMPBELL for the removal of Marsha Bedard as a member of the Board of Education of the Roosevelt Union Free School District.

Decision No. 14,515

(December 21, 2000)

Jaspan Schlesinger Hoffman, LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to remove Marsha Bedard (respondent), from the Board of Education of the Roosevelt Union Free School District ("Roosevelt board"). The application must be denied.

Respondent is one of five members of the Roosevelt board. In accordance with Education Law ""1716(1) and 2022(1), which require that a public hearing on a proposed budget be held not more than fourteen nor less than seven days prior to the date at which a school budget vote will occur, the Roosevelt board scheduled a public hearing on a proposed budget for May 9, 2000 at 7:30 p.m. The annual meeting and election were scheduled for May 16, 2000. All notices for the public hearing were timely.

By 7:40 p.m. on May 9, 2000, respondent had failed to appear at the public hearing. Two other board members, including Glen Simmons, also failed to appear. Because he did not have a quorum, the board vice president, Mark Davis, postponed the public hearing until May 15, 2000, one day prior to the annual meeting and election. Petitioner commenced this application to remove both respondent and Mr. Simmons for their failure to attend the May 9 hearing. Petitioner subsequently withdrew her request for removal of Mr. Simmons by letter dated July 18, 2000.

Petitioner contends that the board’s failure to hold a public hearing on the budget at least seven days prior to the annual meeting and election violates Education Law "1716. Petitioner alleges that respondent’s failure to timely attend the public hearing on May 9 caused the meeting’s postponement in violation of the statute. Petitioner asserts that respondent’s absence from the May 9 meeting constitutes a willful violation or neglect of her duties, which should result in her removal from the board.

Respondent alleges that she arrived at the meeting place approximately 10 or 15 minutes late. Upon her arrival, she discovered that board vice president Davis had adjourned the meeting for lack of a quorum. Davis also claims that he postponed the public hearing until May 15, 2000 because only four members of the community were present. Davis contends that the poor voter turnout was due to an error by the district’s printer, who did not complete the informational budget brochure in time for a pre-hearing mailing. For all of the above reasons, Davis alleges that he felt compelled to postpone the meeting.

Initially I will address a procedural matter. Respondent objects to petitioner’s reply on the grounds that it was not timely submitted. On July 14, 2000 my Office of Counsel granted petitioner’s request for an extension of time to file her reply until July 21, 2000. Therefore, the reply submitted on July 18 was timely. However, the reply raises some new allegations and issues. The purpose of a reply is to respond to affirmative defenses or new material contained in an answer, and is not meant to buttress allegations contained in the petition (8 NYCRR ""275.3 and 275.14; Appeal of Schmitt, 39 Ed Dept Rep 617, Decision No. 14,329; Appeal of Houghton, 38 id. 777, Decision No. 14,141). Accordingly, while I have examined petitioner’s reply, I have not considered those portions that constitute new allegations which are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner has failed to establish facts sufficient to warrant the removal of respondent. 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 Kozak, 40 Ed Dept Rep ___, Decision No. 14,459; Application of Bushman, 37 id. 576, Decision No. 13,931; Application of Cleveland and Bedell, 36 id. 482, Decision No. 13,781). To be considered willful, respondent’s actions must have been intentional and with a wrongful purpose. In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "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 fails to establish that respondent intentionally acted with a wrongful purpose to disregard a lawful duty or violate a legal requirement, and thus fails to establish any grounds for removal of respondent under Education Law "306. Respondent states in her affidavit that she attempted to attend the May 9 public hearing on the budget, however, due to personal reasons she was approximately 15 minutes late. I do not find that her tardiness reaches the level of a willful violation or neglect of duty sufficient to warrant removal.

Finally, I note that the budget was defeated on May 16, 2000. It appears that the Roosevelt board scheduled a timely public hearing on the re-submitted budget in accordance with Education Law ""1716(1) and 2022(1).