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Decision No. 14,588

Application of STEWART S. LILKER for the removal of Ronald Ellerbe, John Muscara, Dante Grover, Albert Renken and Sunday Coward, as members of the Board of Education of the Freeport Union Free School District, and Mary Bediako as District Clerk.

Decision No. 14,588

(June 19, 2001)

Ingerman Smith, L.L.P., attorneys for respondents, Lawrence W. Reich, Esq., of counsel

MILL, Commissioner.--Petitioner seeks the removal from office of the members of the Board of Education and the District Clerk of the Freeport Union Free School District ("respondents") because of alleged violations of law and district policies. The application must be denied.

Petitioner alleges that respondents willfully and intentionally falsified the minutes of board meetings held on September 20, September 27, October 4, and October 18, 2000. Petitioner claims discrepancies exist between the published board minutes and audio recordings he made of the board meetings. Petitioner seeks respondents" removal from their respective offices pursuant to Education Law ""306 and 1706, alleging respondents willfully and intentionally violated their oaths of office, the bylaws of their district, State laws and the Commissioner"s regulations.

Respondents deny petitioner"s allegations and assert that any discrepancies between the published minutes and petitioner"s recordings are insubstantial and lacking in distinction and cannot serve as the basis for removal. Respondents question the accuracy and quality of the audio recordings produced by petitioner. Respondents argue that petitioner has failed to demonstrate that the alleged conduct was willful and intentional. Furthermore, respondents contend that petitioner"s appeal is based upon violations of the Open Meetings Law and as such, is beyond the purview of the Commissioner"s jurisdiction under Education Law "310. Finally, respondents argue that the appeal is untimely insofar as it pertains to the minutes of the September 20 and September 27, 2000 meetings. Respondents contend that the minutes for these meetings were approved by board action more than 30 days prior to the commencement of this appeal.

Before addressing the merits, I will address the procedural issues raised. An appeal to the Commissioner must be commenced 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 board minutes for the September 20 and September 27, 2000 meetings were adopted by resolution of the board on October 18, 2000 and petitioner commenced this appeal on November 15, 2000. Accordingly, I find this appeal timely.

This appeal must, however, be dismissed for lack of jurisdiction. Public Officers Law "107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Application of Lilker, 40 Ed Dept Rep ___, Decision No. 14,486; Appeal of Instone-Noonan, 39 id. 413, Decision No. 14,275; Appeal of Goldin, 38 id. 317, Decision No. 14,043). Consequently, this appeal must be dismissed for lack of jurisdiction.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner has failed to establish facts sufficient to warrant the removal of respondents pursuant to Education Law "306. 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 (Appeal of Kozak, 40 Ed Dept Rep __, Decision No. 14,459; Application of Bushman et al., 37 id. 576, Decision No. 13,931). To be considered willful, respondents" 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 Kozak, supra; Appeal of Chichester, 39 Ed Dept Rep 470, Decision No. 14,286).

Petitioner has not demonstrated that respondents have engaged in willful or intentional misconduct warranting their removal from office. It appears from the record that the alleged inaccuracies and discrepancies between the published minutes and petitioner"s audio recordings are of an administrative nature and do not demonstrate any intentional misrepresentation or attempt to falsify board records. Neither errors in transcription regarding the identity of the board member making a motion nor summarizing board discussion constitute misconduct. Having established no violation of Education Law "306, there is no basis for the removal of respondents from their respective offices.