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Decision No. 14,810

Application of TONI A. BEAN for the removal of Stephannie Andrews, Patricia Cahaney, Marietta Fuentes-Mee and William Manton as members of the Board of Education of the Amityville Union Free School District.

Decision No. 14,810

(October 10, 2002)

Guercio & Guercio, attorneys for respondents, Gregory J. Guercio, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks respondents" removal from the Board of Education of the Amityville Union Free School District. The application must be denied.

Petitioner is a member of the Board of Education of the Amityville Union Free School District. At the board"s July 12, 2001 meeting, respondents, who comprise the majority of the board, voted not to renew the superintendent"s contract. On that same date, respondents also voted to change the start time of regularly scheduled board meetings from 8:00 p.m. to 7:30 p.m. It is clear from the record that the relationship between the board majority and the superintendent was severely strained during the time period relevant to this appeal. On three occasions, respondents directed the superintendent to bring certain personnel files to board meetings. Respondents then reviewed such records during executive sessions of such meetings.

Petitioner contends that respondents willfully violated Part 84 of the Commissioner"s regulations regarding access to employee personnel records. Specifically, petitioner argues that the regulations require respondents to state how such review would aid the board in fulfilling its legal responsibilities before conducting such review and contends that respondents lacked an appropriate basis for such review. Petitioner also claims that respondents intentionally scheduled special and regular board meetings at times that precluded certain board members from attending. Petitioner seeks respondents" removal from the board and contends that I should not issue respondents a certificate of good faith pursuant to Education Law "3811.

Respondents assert that the appeal is untimely, moot and that petitioner lacks standing. Respondents further submit that the petition fails to comply with "277.1(a) of the Commissioner"s regulations and fails to state a claim for which relief can be granted. Respondents request that I issue a certificate of good faith pursuant to Education Law "3811.

Initially, I must address a procedural issue. Petitioner submitted additional exhibits and assertions in her reply. A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (8 NYCRR ""275.3 and 275.14; Appeal of O"Herron, 40 Ed Dept Rep 204, Decision No. 14,461; Appeal of Simpson et al., 40 id. 5, Decision No. 14,402). Therefore, while I have reviewed petitioner"s reply, I have not considered those portions that contain new assertions that are not responsive to new material or affirmative defenses set forth in the answer, nor have I considered exhibits that should have been submitted with the petition.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be instituted 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 30-day limitation period also applies to removal applications made pursuant to Education Law "306 (8 NYCRR "277.1; Application of Downing, 40 Ed Dept Rep 396, Decision No. 14,509; Appeal of Todd, 37 id. 419, Decision No. 13,893). An application for removal pursuant to "306 may also be timely commenced within 30 days of the petitioner"s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Dulkiewicz, 40 Ed Dept Rep 710, Decision No. 14,590; Appeal of Leman, et. al., 39 id. 407, Decision No. 14,274). None of the actions that petitioner challenges in this appeal occurred within 30 days of the date she commenced this appeal and petitioner has provided no reason for the delay. Moreover, petitioner does not allege that there was any delay in her discovery of the conduct at issue. Consequently, the appeal must be dismissed as untimely.

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 a board of education may be removed from office pursuant to Education Law "306 when it is proved 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 Lilker, 40 Ed Dept Rep 704, Decision No. 14,588; Application of Kozak, 40 id. 195; Decision No. 14,459; Appeal of Gaul, 40 id. 105, Decision No. 14,432). To be considered willful, respondents" actions must have been intentional and with a wrongful purpose. In an appeal to the Commissioner of Education, petitioner has the burden of demonstrating a clear right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which petitioner seeks relief (Application of Lilker, supra; Appeal of Kozak, supra; Appeal of Chichester, 39 Ed Dept Rep 470, Decision No. 14,286).

With respect to the scheduling of regular board meetings, petitioner fails to provide any legal basis that would preclude a board of education from changing the start time of its regularly scheduled board meetings. Education Law "1708 states that it is the duty of the board of education to conduct a regular meeting at least once each quarter, but does not dictate a specific time for such meetings. Petitioner charges that respondents improperly ignored the request of another board member, who is not a party in this appeal, to accommodate her work schedule. I find that the decision as to when board meetings should be held is a matter within the discretion of a board of education and that petitioner has failed to demonstrate that respondents" decision to change the start time of regularly scheduled meetings from 8:00 p.m. to 7:30 p.m. was in any way illegal or improper. Moreover, the record is devoid of any evidence from the board member who was allegedly adversely affected that she has been prevented from performing her duties as a result of the new start time for regularly scheduled board meetings.

Petitioner also claims that respondents improperly scheduled special board meetings during the school day. Pursuant to Education Law "1606(3), any school board member has the authority to call a special meeting of the board of education, as long as notice is given to the other board members at least 24 hours in advance. Petitioner does not assert that she was not provided adequate notice of special board meetings. While it is a matter of common courtesy to attempt to accommodate the schedules of all board members when scheduling special board meetings, it is not required by law and may not always be possible depending on the circumstances. As this appeal involves the scheduling of just two meetings, the record fails to support the allegation that respondents intentionally scheduled special meetings to exclude certain board members. Indeed, petitioner has failed to demonstrate that respondents" role in special board meetings was in any way improper or illegal.

Petitioner has, likewise, failed to demonstrate that respondents willfully violated Part 84 of the Commissioner"s regulations in examining the personnel records of certain district employees. Under the regulations, any board member may ask the superintendent to bring the personnel records of a designated employee or employees to an open meeting of the board. The board must then determine whether to conduct an executive session for the purpose of examining such records. Information obtained from such records may only be used for the purpose of facilitating the board"s ability to carry out its legal responsibilities.

Respondents" purported rationale for reviewing such records was to verify whether certain required actions had been performed by its superintendent and central administration staff. The review apparently occurred after the board voted not to renew the superintendent"s contract and while negotiations regarding a buy-out of the superintendent"s contract were underway. It appears that respondents lacked confidence in the superintendent and wanted to ensure that the district would meet its legal obligations. For example, respondents assert that they reviewed the personnel files of several employees to determine if employee evaluations had been performed. There is no evidence in the record that respondents used information obtained from reviewing these personnel files for any improper purpose. Based on the record before me, I cannot conclude that respondents willfully violated Part 84 of the Commissioner"s regulations.

Respondents request that I issue a certificate of good faith pursuant to Education Law "3811. That statute provides that a school district must pay for legal expenses incurred by board members in proceedings arising out of their official duties. To invoke "3811, a board member must notify the board of education, in writing, of the commencement of a proceeding, within five days after service of process. Within ten days following receipt of that notice, the board must designate and appoint legal counsel to represent the board member, and the Commissioner of Education or a court, as appropriate, must certify that the board member appeared to have acted in good faith with respect to the exercise of his or her powers or performance of his or her duties under the Education Law (Education Law "3811).

The record indicates that respondents were originally served in this action on January 8, 2002. Although there is no indication in the record that respondents provided the board of education with the written notice specified in Education Law "3811(1), respondents state, and petitioner does not dispute, that respondents were served with the petition at a public meeting of the board of education. They further provided a copy of a resolution which the board of education passed at its January 29, 2002 meeting stating that the board "expressly agrees to confer the benefits of Section 3811 of the New York State Education Law on said respondents and to be held liable for the costs incurred under its provisions subject to the issuance of a certificate of good faith by the Commissioner of Education;.."

It is clear that the board of education was on notice of the proceeding and was willing to defend respondents. I find that the purpose of the statute was substantially satisfied and that adequate and timely notice of the proceeding was provided to the board of education (Matter of McNulty v. Bd. of Educ. of City School Dist. of City of Binghamton, 110 Misc.2d 239; Application of Cuttita and Doyle, 37 Ed Dept Rep 449, Decision No. 13,902; Application of Rampello, 37 id. 176, Decision No. 13,834). In light of the fact that the application is dismissed on the merits, I certify pursuant to Education Law "3811 that respondents appear to have acted in good faith.

In light of the foregoing disposition, I will not address the parties remaining claims.