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Decision No. 14,651

Application of PRISCILLA A. EKPECHAM for the removal of Ronald O. Ross as Superintendent of the City School District of the City of Mount Vernon.

Decision No. 14,651

(October 31, 2001)

Aiello & Cannick, attorneys for respondent, Deveraux L. Cannick, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the City School District of the City of Mount Vernon, seeks the removal of Ronald O. Ross ("respondent") from his position as superintendent. The application must be denied.

Petitioner contends that respondent permitted the school district's postage machine to be used on or about March 15, 2001, for the purpose of a mass mailing for a not-for-profit organization called "Saving Our Children Through Prayer Power." The envelopes used for the mass mailing displayed the organization's name, and listed its address as "c/o Grace Baptist Church" in Mount Vernon. The enclosed letter was on the organization's letterhead that also bore the address of the church. The letter was an invitation to a public meeting on March 25, 2001, allegedly to exhort public support for respondent and the Mount Vernon school system, and to support the use of school uniforms in the public schools. Petitioner alleges that respondent failed to obtain approval from the board of education for the mailing, and that use of the postage machine for this purpose was a willful violation of the Education Law.

Petitioner further contends that respondent improperly permitted Saving Our Children Through Prayer Power to use an auditorium in a district elementary school on March 25, 2001 without obtaining a certificate of general liability insurance and a hold harmless agreement, as required by district policy. Petitioner asserts that these allegations constitute willful violation of the Education Law and neglect of respondent's fiduciary duties and warrant respondent"s removal.

Respondent asserts that the Grace Baptist Church reimbursed the district in the amount of $1,092.46 for the cost of postage for the mailing in question. Respondent contends that, because no district funds were used for the mailing, there was no need to obtain authorization from the board of education, and any claims regarding that mailing are now moot. As to the failure to obtain a certificate of insurance, respondent presents the affidavit of Robin Cole, the district's Superintendent of Building and Grounds. Mr. Cole explains that he reviewed the application submitted by Saving Our Children Through Prayer Power, to use the elementary school auditorium for a public meeting. He noticed that Ms. Frances A. Kimber, who he knew to be a deacon at Grace Baptist Church, signed the application. Mr. Cole mistakenly believed that the facility was therefore to be used by the Grace Baptist Church, and accepted a certificate of insurance from the church that was already on file with the district. As to the alleged lack of a "hold harmless" agreement, neither respondent nor Mr. Cole address this contention, and there is no showing that a hold harmless agreement was in fact submitted as required by district policy.

Respondent also contends that the petition should be dismissed as untimely. I will address this procedural objection first. An application pursuant to Education Law "306 for removal of a school officer must be made in the same manner as an appeal to the Commissioner pursuant to Education Law "310 (8 NYCRR "277.1). 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). Petitioner's application is based on incidents that occurred on or about March 15 and March 25, 2001. However, this application was not served until May 15, 2001, well over 30 days after the latest of the two incidents, so I must conclude that the application is untimely. Although petitioner had previously attempted to commence an appeal, her petition was returned by my Office of Counsel on April 26, 2001 because it did not comply with the Commissioner's regulations in several respects, including lack of personal service on respondent. Her prior ineffective attempt to commence an appeal is not a valid excuse for her failure to commence this proceeding in a timely fashion (Appeal of Marbury, 41 Ed Dept Rep ___, Decision No. 14,634; Appeal of Bluemke, 39 id. 447, Decision No. 14,281; Appeal of Kelly, 39 id. 164, Decision No. 14,203). Petitioner presents no other reasons to excuse her delay.

Even if I did not dismiss this application as untimely, I would deny it on the merits. The Commissioner of Education is authorized to remove a superintendent or other school officer for a willful violation or neglect of duty (Education Law "306[1]; Appeal of Phillips, 41 Ed Dept Rep ___, Decision No. 14,595; Appeal of Goldin, 39 id. 14, Decision No. 14,158). A "willful" act is one intentionally done with a wrongful purpose to disregard a lawful duty or violate a legal requirement (Application of Lilker, 40 Ed Dept Rep ___, Decision No. 14,588; Application of Downing, 40 id. ____, Decision No. 14,509; Appeal of Todd, 37 id. 419, Decision No. 13,893). 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 petitioner seeks relief (Appeal of Reynolds, 41 Ed Dept Rep ___, Decision No. 14,604; Appeal of Phillips, supra; Appeal of S.H., 40 id. ___, Decision No. 14,578). The evidence presented in the record before me does not establish that respondent was in fact aware of the mailing or the application to use the elementary school facility prior to or at the time the actions occurred, much less that respondent approved the actions. The affidavit by Mr. Cole establishes that he was the person responsible for the lack of a certificate of insurance, although there is no mention of the hold harmless agreement. In any event, I do not find sufficient proof that any of the alleged actions were intentionally undertaken for a wrongful purpose, and thus the allegations do not support the removal of respondent from his position.

Although I am dismissing this application, I am compelled to comment on the use of school district postage equipment for private purposes, irrespective of whether the cost of the actual postage is reimbursed. The school district should be mindful that the United States Constitution prohibits government action that tends to support or sponsor a particular faith or religious group (seeSanta Fe Independent School Dist. v. Doe, ___ U.S. ___, 120 S.Ct. 2266 [2000]). Similarly, a school may not offer a particular religious group or faith privileges or access to school property that is not generally available to the public (seeGood News Club v. Milford Central School, ___ U.S. ___, 121 S.Ct. 2093 [2001]; Santa Fe, supra).

The use of the district's equipment, and the identification of the district's postal meter number on envelopes displaying the name and address of an organization linked to a particular religious denomination and church, creates the appearance of sponsorship by the school district of this particular religious organization, and its activities and messages. Without ruling on the propriety of such use, I note that granting unique rights to one organization creates at the very least an appearance of impropriety (See Appeal of Karpoff, et al., 40 Ed Dept Rep ___, Decision No. 14,527 [district support of one advocacy group"s efforts to make a movie on school property created the appearance of impropriety]). Moreover, the use of district resources, equipment, etc., also raises the spectre of an illegal use of public funds for private purposes (New York State Constitution Article VIII, "1).

I must also comment on the district's acceptance of the certificate of insurance already on file for Grace Baptist Church, even if the church had indeed been the entity seeking to use the school auditorium for the March 25, 2001 public meeting. Respondent provided a copy of the certificate with Robin Cole's affidavit. The certificate evidences that the church had a general liability insurance policy in effect from May 2000 to May 2001. However, with respect to specific coverage for use of the school as required by school policy, the certificate on file expressly extended the coverage of the church's liability policy only to two specific events - a rehearsal on December 16 and an event on December 17, 2000. Therefore, this certificate would not have provided coverage for the March 25, 2001 event. Districts must be circumspect in their examination of insurance certificates to ensure that the certificate properly extends the coverage of the underlying insurance policy to each planned event or use of school property.