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Decision No. 14,532

Appeal of MARK L. BALEN from action of the Board of Education of the City School District of the City of Lackawanna relating to his removal as a trustee.

Decision No. 14,532

(January 20, 2001)

Albrecht, MaGuire, Heffern & Gregg, P.C., attorneys for respondent, John M. Curran, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Lackawanna ("respondent") removing him as a trustee for official misconduct. The appeal must be dismissed.

Petitioner was elected in May 1997 to a one-year term of office as a trustee of the City School District of the City of Lackawanna ("the district"), and re-elected to a three-year term the following May. At a March 2, 1999 special meeting, respondent voted to hire special counsel to investigate whether petitioner had engaged in official misconduct. It is not clear from the record what prompted this decision. During an executive session held on August 12, 1999, respondent directed special counsel to file and serve written charges of official misconduct against petitioner after obtaining the results of the investigation. Petitioner was served with a copy of the charges by mail on October 12, 1999. Petitioner’s attorney also accepted personal service of a copy of the charges on petitioner's behalf on October 22, 1999.

The statement of charges alleges three counts of misconduct. The first charges petitioner with unauthorized interference with district personnel and alleges that in September 1998, petitioner contacted Richard L. Baldelli, the district’s acting supervisor of buildings and grounds, and without respondent’s authorization demanded that he refrain from scheduling David Staniszewski, a maintenance employee, for overtime work. It is alleged that during that telephone call, petitioner used threatening and profane language. The complaint also accused petitioner of sending various unauthorized written directives to Baldelli ostensibly on behalf of respondent’s "Plant Committee".

The second charge accuses petitioner of settling several level three grievances without respondent’s authorization. Specifically, the complaint charges that petitioner conducted settlement negotiations, executed settlement agreements and informed employees of his determination of their grievances, all without respondent’s authorization.

The third charge alleges that petitioner used confidential student information in breach of district policy. Specifically, petitioner is charged with obtaining the names and addresses of the students in a particular third grade class and sending a letter to their parents criticizing the board majority’s decision to approve the mid-year transfer of the students’ teacher.

Although petitioner suffered a heart attack on June 8, 1999, he was present at respondent’s October 13, 1999 meeting when respondent appointed a hearing officer and scheduled a hearing on the charges for October 27 and 28, 1999. During that meeting, in response to petitioner’s canvass of his fellow board members as to whether they would be impartial at the impending hearing, board member Makeyenko laughingly stated that he would be "very biased".

On or about October 20, 1999, petitioner’s attorney, Jennifer Runfola, contacted the special counsel and apparently requested an adjournment because of petitioner’s health problems. Special counsel requested that Runfola provide an affidavit to substantiate petitioner’s condition. Although special counsel did not receive the documentation requested, the hearing was postponed to November 18 and 19, 1999 due to the unavailability of a board member. Petitioner’s counsel was notified of such by facsimile on November 16, 1999.

The day before the November 18, 1999 hearing, petitioner’s counsel commenced a proceeding in Supreme Court, Erie County, in an unsuccessful attempt to obtain a stay of the hearing. She then appeared at the November 18, 1999 hearing without medical documentation and renewed her request for an adjournment based on petitioner’s medical condition. After respondent denied her request, she refused to participate in the hearing and absented herself from the proceedings.

With the remaining six board members, the hearing officer, and respondent’s counsel present, special counsel presented proof of the misconduct charges. Evidence was presented that in September of 1998, Richard Baldelli, the district’s acting supervisor of buildings and grounds, received a series of phone calls from petitioner regarding Baldelli’s scheduling of employees to work overtime at weekend football games. In the first, petitioner, using threatening and profane language, directed Baldelli not to schedule David Staniszewski for overtime. During the second, petitioner threatened Baldelli that unless an employee by the name of "Mach" worked the overtime, petitioner "would take care of… Mach, and his family". Baldelli also testified that petitioner sent him two memoranda both dated September 15, 1998. In the first, petitioner indicated that he had heard that "David Staniszewski is enjoying extended lunch hours" and directed Baldelli to "take appropriate corrective action" and disband the "Good Old Boys Club". The second, which had ostensibly come from the "Board Plant Committee" and bore the initials of petitioner and board member Motyka, notified Baldelli that his "current operational administration calls for too much unnecessary overtime" and directed that he take certain specified action to correct the situation. Board member Motyka testified that he did not initial the September 15, 1998 memorandum and had not given petitioner permission to do so for him.

Nellie King, respondent’s superintendent of schools, identified a November 16, 1998 letter from petitioner, received by a parent of a third grade student, that criticized Ms. King’s recommendation to respondent to reassign a teacher mid-year, and urged parents to attend the upcoming board meeting to voice objection. The letter was not on the district’s letterhead, but was signed by petitioner as respondent’s vice-president. Ms. King testified that neither the elementary school principal nor his secretary had given petitioner permission to access the students’ names and addresses and that she did not know how petitioner had obtained the information. Although Ms. King's testimony is somewhat unclear, it appears that there is a board policy that permits only the classroom teacher to access student names and addresses. However, the policy was neither identified nor introduced into evidence.

Ms. King also identified a number of step three grievances that petitioner had purportedly settled on respondent’s behalf. The proof supporting this charge included evidence that petitioner sent a letter dated December 3, 1998 to Peter Mendez indicating that petitioner had conducted a "level III review of the… grievance", found that it lacked merit, and pronounced that it "is hereby denied". Petitioner also sent a letter dated December 14, 1998 to Theresa Canestrari, president of CSEA, advising her that he had approved her December 3, 1998 grievance concerning the posting of a working foreman position. Ms. King testified that respondent had not delegated authority to petitioner to resolve these grievances and subsequently directed the board clerk to notify the grievants to disregard petitioner’s determinations.

At the conclusion of special counsel’s presentation, respondent determined, after discussion, to adjourn the matter to November 22, 1999 to allow petitioner a final opportunity to contest the charges. Petitioner’s attorney was notified of this decision by letter on November 19, 1999. By letter dated November 22, 1999, petitioner’s counsel acknowledged receipt of the November 19, 1999 letter and transmitted by facsimile two unsworn letters from petitioner’s doctors. The first, dated October 21, 1999 from petitioner’s cardiologist, indicated that petitioner was "under [his] care since a recent myocardial infarction and recent surgery". The letter further stated that petitioner was undergoing cardiac rehabilitation and would be "unable to resume his work schedule until further notice…". The second, dated October 19, 1999 from Dr. Daniel J. McMahon, requested a two month "leave of absence" to permit petitioner to complete rehabilitation for a myocardial infarction suffered in June.

Neither petitioner nor his counsel appeared at the hearing on November 22, 1999. After a motion to grant petitioner a further adjournment failed, respondent met in executive session to consider the charges against petitioner. By a vote of four to two, respondent found petitioner guilty of each of the three charges of misconduct, and voted to remove him from office. This appeal ensued. Petitioner’s request for interim relief was denied on December 23, 1999.

Petitioner contends, among other things, that he was denied a full and fair opportunity to refute the charges against him because he was denied access to documents and information necessary to present his defense; he was improperly denied an adjournment; trustee Makeyenko was biased against him; and the third charge did not specify the policy he allegedly violated. For relief, petitioner requests an order directing his reinstatement to his trustee position and finding that he acted in good faith.

Respondent contends, among other things, that it properly denied petitioner’s request for an adjournment because petitioner failed to supply sufficient proof to substantiate his medical condition. Respondent asserts that petitioner was given sufficient opportunity to refute the charges, but failed to do so. Respondent also asserts that the evidence presented at the hearing was sufficient to sustain the charges and justified petitioner’s removal. Respondent further contends that petitioner’s reply and memorandum of law should be disregarded because the reply was improperly served and buttresses allegations in the petition and the memorandum of law is untimely.

Before turning to the merits, I will address a number of procedural matters. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions or exhibits that should have been in the petition (Application of McCart, et al., 39 Ed Dept Rep 534, Decision No. 14,302; Appeal of Breud, et al., 38 id. 748, Decision No. 14,133). Although I will accept petitioner’s reply, I will not consider those portions that contain new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

As to respondent’s claim that petitioner’s memorandum of law was untimely, "276.4 of the Commissioner’s regulations states that the Commissioner may permit the late filing of memoranda of law upon written application by a party, setting forth good cause for the delay and demonstrating the necessity of such memoranda to the determination of the appeal. Although petitioner incorrectly calculated the date by which he was required to submit his memorandum of law, the mistake appears to be inadvertent. Accordingly, I will accept petitioner’s memorandum of law despite its untimeliness.

To the extent that petitioner alleges respondent denied him access to documents in violation of the Freedom of Information Law ("FOIL"), the appeal must be dismissed for lack of jurisdiction. The appropriate forum for addressing alleged FOIL violations is the Supreme Court of the State of New York (Appeal of Christe, 39 Ed Dept Rep 685, Decision No. 14,349; Appeal of Tsu, et al., 39 id. 84, Decision No. 14,181).

I find no merit to petitioner’s claim that he was denied an opportunity to refute the misconduct charges. Before respondent voted on petitioner’s request for an adjournment, respondent’s counsel introduced the documentation submitted by petitioner’s counsel and informed the board of the legal precedent, as established by a number of appellate division decisions, pertaining to a party’s request for a trial adjournment because of illness (see; New York TRW Title Insurance, Inc. v. Wade’s Canadian Inn and Cocktail Lounge, Inc., 241 AD2d 845; Terio v. Terio, 190 AD2d 665; Gramma v. Gramma, 161 AD2d 899).

In New York TRW Title Insurance, Inc., the Appellate Division, Second Department, sustained the trial court’s denial of a continuance, noting that the attorney did not claim that his client would testify or that his testimony was material and did not proffer the sum and substance of his client’s testimony. The court also noted that the attorney failed to indicate when his client would be available. In Terio, the Appellate Division, Second Department, upheld the trial court’s denial of a trial adjournment, noting, among other things, that the defendant’s attorney did not provide medical affidavits or other documents demonstrating his client’s inability to attend the trial. Finally, in Gramma, the Appellate Division, Third Department, sustained the trial court’s denial of a request for an adjournment that was based on "an unsworn conclusory letter from [plaintiff’s] doctor claiming that she was unable to go through a trial."

Thus, the case law supports respondent’s decision to deny petitioner’s request for an adjournment. Petitioner was charged with serious acts of misconduct. Respondent had an obvious interest in ensuring that the charges were resolved both fairly and expeditiously. Respondent was, therefore, justified in refusing to adjourn the hearing unless petitioner established that his medical condition prevented him from presenting his defense. The unsworn letters submitted by petitioner’s counsel were insufficient to establish that petitioner’s medical condition prevented him from attending the hearing. Nor did they establish when he would be medically able to proceed. Petitioner’s counsel also failed to establish that petitioner’s presence at the hearing was essential to his defense. She did not assert that petitioner intended to testify or proffer the sum and substance of his testimony. There is nothing in the record to suggest that petitioner’s counsel could not have cross-examined the district’s witnesses, presented any documentary or testimonial evidence on petitioner’s behalf, or otherwise defended petitioner against the charges. Notwithstanding the inadequacy of counsel’s proffer on November 18, 1999, respondent adjourned the hearing to November 22, 1999 to allow petitioner one final opportunity to present his defense. Petitioner did not avail himself of this opportunity. Under these circumstances, I cannot conclude that respondent acted arbitrarily by proceeding in petitioner’s absence.

I also find sufficient evidence in the record to support respondent’s decision to remove petitioner from office. Education Law "1709(18) authorizes a board of education to remove a board member for "official misconduct". Such misconduct must clearly relate to a board member’s official duties, either because of the allegedly unauthorized exercise of the member’s powers or the intentional failure to exercise those powers to the detriment of the school district (Appeal of Cox, 27 Ed Dept Rep 353, Decision No. 11,973).

Preliminarily, I find insufficient proof in the record to sustain the third charge, which alleged that petitioner had obtained the names and addresses of certain district students in violation of "district policy". The special counsel was unable to establish how, in fact, petitioner obtained the names and addresses of the classroom students in question. Further, the policy that petitioner allegedly violated was not clearly identified or introduced into evidence, and superintendent King’s testimony on the subject was unclear. Even if the proof were sufficient, I find that the conduct alleged does not constitute grounds sufficient to justify petitioner’s removal. Even if petitioner had obtained students’ names and addresses without following district procedures, this conduct did not rise to the level of official misconduct. In view of my finding, I decline to address petitioner’s contention that the charge did not specify the policy allegedly violated.

However, I find sufficient proof pertaining to charges one and two both to sustain the charges and justify petitioner’s removal. The evidence established, among other things, that petitioner, without board authorization, directed the acting supervisor of building and grounds not to schedule one particular employee for overtime work and used threatening and profane language in doing so. The record also reflects that petitioner notified a number of grievants of determinations of their grievances, when, in fact, respondent had never approved the determinations. Unless a board of education has taken official action to designate an individual member as the representative of the board for a particular purpose, an individual board member has no authority to act for the board (Appeal of Silano, 33 Ed Dept Rep 20, Decision No. 12,961). Petitioner clearly overstepped his authority by attempting to exercise respondent’s authority without being authorized to do so. His actions constitute serious misconduct. Under these circumstances, I cannot conclude that respondent acted arbitrarily in removing petitioner from office.

Moreover, I find nothing in the petition that would dictate a contrary conclusion. Petitioner submits proof suggesting that he and the other members of respondent’s grievance committee were authorized to negotiate grievance settlements with union representatives, subject to board approval. Even if this were true, it does not explain or justify petitioner’s actions. The evidence reflects that petitioner did more than simply negotiate tentative settlements. The proof establishes that petitioner formally determined a number of grievances and notified the grievants of those determinations even though they had not been approved by respondent. Petitioner also attempts to justify his contacts with Baldelli as consistent with his role on respondent’s "Plant Committee". However, petitioner’s membership on the Plant Committee did not vest him with authority to threaten and abuse Baldelli and to dictate which maintenance employees could or could not work overtime.

Finally, although board member Makeyenko’s comment, apparently made in jest, that he would be biased against petitioner was inappropriate and regrettable, I do not find it sufficient to disturb respondent’s decision to remove petitioner from office. There is nothing in the record to suggest that Makeyenko did not, in fact, fairly consider the evidence presented. Moreover, I find more than sufficient proof in the record to support the board's decision to remove petitioner from office.

I have examined petitioner’s remaining contentions and find them without merit.