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Decision No. 14,672

Application of BRUCE KAVITSKY for the removal of Richard Braverman as a member of the Board of Education of the Hewlett-Woodmere Union Free School District.

Decision No. 14,672

(December 20, 2001)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jerome H. Ehrlich, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Richard Braverman ("respondent") from his position as a member and president of the Board of Education of the Hewlett-Woodmere Union Free School District ("board"). The application must be denied.

Respondent has been a member of the board since July 1, 1983, and its president since July 1, 1992. Petitioner states that in July 2000, he heard a rumor that respondent's son Peter was employed by the Spector Group, an architectural firm, at the time a contract between the board and the Spector Group was awarded. Petitioner asserts that respondent acted to influence the awarding of the contract to the Spector Group in violation of the conflict of interest provisions of the General Municipal Law in order to benefit himself and his son. Petitioner further contends that respondent failed to disclose this conflict and failed to exercise his fiduciary duties as a board member. He also objects that the contract was awarded to the Spector Group without the benefit of competitive bidding. In addition, petitioner alleges that respondent engaged in inappropriate activities related to the district's annual election on May 15, 2001, and disobeyed the Commissioner's directives in a prior decision (Appeal of Boni, 40 Ed Dept Rep ___, Decision No. 14,483). Petitioner seeks respondent's removal from the board pursuant to Education Law "306 and the appointment of the next-highest candidate in the May 15, 2001 election to fill respondent's seat.

Respondent denies that he violated any conflict of interest provisions or that he engaged in any wrongdoing relating to the May 15, 2001 annual election. Respondent contends that the portion of the petition relating to the award of contracts to the Spector Group should be dismissed as untimely. In addition, respondent requests my certification that he acted in good faith with respect to the exercise of his powers in the performance of his official duties.

I will first address two procedural issues. Petitioner attempts to buttress his claims by adding arguments and an exhibit to his reply. 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). It is not meant to buttress allegations in the petition or add assertions or exhibits that should have been part of the petition (Appeal of O'Herron, 41 Ed Dept Rep ___, Decision No. 14,591; Appeal of Denise W., 40 id. ___, Decision No. 14,538; Appeal of Krantz, 38 id. 485, Decision No. 14,077). Therefore, while I have reviewed petitioner's reply, I have not considered the additional arguments and exhibit.

With regard to the issue of timeliness, an application pursuant to Education Law "306 for removal of a member of a board of education must be made in the same manner as an appeal to the Commissioner pursuant to Education Law "310 (8 NYCRR "277.1). A "310 appeal 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).

According to Dr. Karen Chapman, the district's Assistant Superintendent for Business since 1986, the district has contracted with the Spector Group for various projects since 1988. On January 13, 2000, the board approved a contract with the Spector Group for plans for the construction of a new middle school, an addition to the high school and renovations at other district sites. The Spector Group was paid $442,400 for its services and studies in preparation for a bond referendum to pay for these projects. On March 16, 2000, district voters rejected the bond referendum. On June 20, 2000, however, district voters approved a revised referendum that excluded a new middle school and reduced the scope of the other projects. On August 2, 2000, the board amended the January contract with the Spector Group for it to perform the architectural services required for the projects approved by the voters in June. On December 14, 2000, the board again amended the contract to provide for the recapture of the $442,400 previously paid to the Spector Group in the event that district voters approve the construction of a new middle school in the future and the Spector Group is hired for that construction project.

The initial contract to which petitioner objects was entered into on January 13, 2000, and last amended on December 14, 2000. Petitioner served his application on June 2, 2001, almost six months after the last amendment and eighteen months after the initial contract. He has offered no excuse for his delay in the commencement of this application. Accordingly, that portion of petitioner's application relating to the contract with the Spector Group must be dismissed as untimely.

I note that petitioner attempted to commence this application on May 7, 2001. However, my Office of Counsel returned his application on May 10, 2001 because it did not contain the proper notice and because petitioner had failed to personally serve respondent. Nonetheless, even if the application had been properly served in May, it would still be untimely, as it would still have been five months after the December amendment and seventeen months after the initial contract was entered into. Finally, petitioner's claim that he filed his application within thirty days of when he believed he had sufficient evidence to support his allegations, does not constitute a reasonable excuse for delay, especially where the record indicates that he had knowledge of respondent's son's employment with the Spector Group since at least July 2000, almost a year prior to the commencement of this application.

Even if the application 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 respondent 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 Lilker, 40 Ed Dept Rep ___, Decision No. 14,588; Appeal of Kozak, 40 id. ___, Decision No. 14,459; Application of Bushman et al., 37 id. 576, Decision No. 13,931). 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 he seeks relief (Appeal of Lilker, supra; Appeal of Chichester, 39 Ed Dept Rep 470, Decision No. 14,286).

The conflict of interest provisions of the General Municipal Law define interest as "a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves" (General Municipal Law "800[3]). That section further provides that "a municipal officer or employee shall be deemed to have an interest in the contract of (a) his spouse, minor children and dependents. . . ." For purposes of the statute, a minor is defined as "a person who has not attained the age of eighteen years" (General Municipal Law "2[3]).

Respondent acknowledges that the Spector Group employed his son, Peter, as an architectural intern during the summers of 1994 and 1995, and as a full-time salaried employee beginning in February 1996 upon Peter's graduation from architectural school when he was 23 years old. Upon graduation, Peter resided in respondent's home until his marriage in July 2000. Clearly, Peter was not a minor when he graduated from architectural school. Although "dependent" is not defined in the statute, the record indicates that upon graduation Peter was at least 23 years old, had a salaried position, and assumed his own responsibility for taxes, clothing, insurance, medical expenses, and entertainment, among other things. Petitioner has failed to show that Peter was respondent's dependent merely because he resided in his father's home. Furthermore, petitioner has failed to prove that respondent derived a direct or indirect pecuniary or material benefit from the fact that Peter resided under his roof. As such, the circumstances described in this record do not constitute a violation of the statute (see, Opinion #68-308, 24 Op. State Compt. 326).

Respondent also states that he informed petitioner directly about Peter's employment in December 1999, and upon advice of counsel, disclosed Peter's employment to the board whenever a contract with the Spector Group was considered. Dr. Chapman also avers that the district's relationship with the Spector Group began in 1988, prior to Peter's employment there, and that Peter did not work on any district projects. She avers further that the district administration recommended that the board award contracts to the Spector Group because of Spector's consistent quality performance and its ability to meet budget and schedule limitations on previous projects. Dr. Chapman and Bert Nelson, the district's superintendent from 1982-1998, also state that the board approved each contract unanimously upon the administration's recommendations, and that to each of their recollections, respondent disclosed his son's employment on each occasion.

On the record before me, petitioner has not met his burden of demonstrating that respondent engaged in any willful or intentional misconduct warranting his removal from office. He implies that since respondent's disclosures are not in the board minutes, they were not made. However, respondent, Dr. Chapman, Mr. Nelson, and respondent's counsel all aver that such statements were made. Further, petitioner has not disputed that all board votes were unanimous, thus diminishing the influence of respondent's single vote. Furthermore, a board member who acts on advice of counsel has not engaged in a willful violation or neglect of duty justifying removal under Education Law "306 (Application of Fix, 39 Ed Dept Rep 728, Decision No. 14,362). Thus, petitioner has failed to prove that respondent engaged in any willful or intentional misconduct (Appeal of Lilker, supra).

Petitioner also alleges that respondent caused the PTA to cancel a "candidates night" prior to the May 15, 2001 election and thus interfered with the electoral process. (See Appeal of Boni, 41 Ed Dept Rep ___, Decision No. 14,666). Respondent denies this allegation and the co-president of the PTA states that it was the PTA alone that decided not to sponsor a "candidates night." Likewise, I do not find that respondent interfered with the holding of an alternate candidates' forum at the Woodmere Volunteer Fire Department. Thus, I find that petitioner has failed to meet his burden of proof on this issue.

I have considered the parties' remaining allegations and contentions, and find them without merit. With respect to respondent's request for a certificate of good faith pursuant to Education Law "3811(1), in view of the fact that petitioner's application for removal must be denied for the reasons set forth above, I certify that respondent appears to have acted in good faith.