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Decision No. 14,860

Application of JOLIE DUNHAM, JEAN JACOBS, CARLTON BELL, JAMES LEAHY and GEORGE FARRELL for the removal of Peter R. Litchka as superintendent of the City School District of the City of Kingston.



(April 16, 2003)


Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel


MILLS, Commissioner.--Petitioners seek the removal of Peter R. Litchka ("respondent") as superintendent of the City School District of the City of Kingston ("Kingston") for an alleged violation of a school board policy.  The application must be denied.

Respondent was appointed superintendent of Kingston in September 2001.  By letter dated April 22, 2002, the board of education notified respondent of his suspension with pay.  At that time, petitioners were trustees of the board.  Respondent signed the roster to speak during the public comment portion of the board"s April 24, 2002 meeting pursuant to board policy 1230.  The first person registered on the list to speak yielded her time to respondent.  Respondent then read a prepared speech that was critical of petitioners.  This application ensued.  Respondent subsequently was reinstated.

Petitioners allege that respondent violated various provisions of board policy 1230 at the April 24, 2002 meeting.  They allege that his remarks did not respect the dignity of board members, impugned their integrity, improperly addressed a pending employee suspension, namely, respondent"s own, and exceeded the two-minute limit for public comments.  Finally, petitioners claim that respondent was aware of the provisions of policy 1230, as it had been enacted during his tenure as superintendent, in January 2002.  

Respondent denies that his April 24, 2002 speech was a willful violation of policy 1230.  He alleges that petitioners have waived any claim that the policy was violated because they made no attempt to enforce it while he was speaking.  Respondent also argues that petitioners lack standing and have failed to state a claim upon which relief may be granted.  Finally, he contends that petitioners are attempting to use the removal process to circumvent the provisions of respondent"s employment agreement. 

Initially, I will address the procedural issue of standing.  Petitioners are residents of Kingston and thus have standing to bring a removal proceeding pursuant to Education Law "306 (Application of Wilson, 41 Ed Dept Rep ___, Decision No. 14,663; Application of Eisenkraft, 38 Ed Dept Rep 553, Decision No. 14,092).  Therefore, I will not dismiss the appeal for lack of standing.

However, the appeal must be dismissed on the merits.  Education Law "306 authorizes the Commissioner of Education to remove a superintendent of schools for willful violation or neglect of duty or willful disobedience of any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education.  A "willful" act is one intentionally done with a wrongful purpose to disregard a lawful duty or violate a legal requirement (Application of Downing, 40 Ed Dept Rep 396, Decision No. 14,509; Appeal of Todd, 37 id. 419, Decision No. 13,893).  Respondent contends that he did not violate board policy 1230.

Petitioners have the burden of establishing a clear legal right to the relief requested and the facts upon which they seek relief (8 NYCRR " 275.10; Application of Downing, supra.; Application of Goldin, 39 Ed Dept Rep 14, Decision No. 14,158).  Petitioners allege that respondent violated board policy governing public comment at board meetings.  The alleged violations of board policy, even if proven, would not, on the record before me constitute sufficient ground for removal of a superintendent (Appeal of McSweeney, 20 Ed Dept Rep 397, Decision No. 10,456).  An audiotape of the meeting demonstrates that individuals registered to speak continued to yield their time to respondent so that he could finish his speech.  The board did not silence respondent, or rule him out of order.  While respondent"s speech may have been intemperate, this single instance of inappropriate speech did not rise to the level of a willful violation or neglect of duty that would justify removal (See, Application of the Bd. of Educ. of the Lawrence UFSD, 39 Ed Dept Rep 523, Decision No. 14,299; Application of O"Mara, 37 id. 122, Decision No. 13,819).

Moreover, respondent was not attending the meeting in his capacity as superintendent, as he had been suspended by the board, which included petitioners.  Thus his actions could not be considered to be a neglect of duty.

In light of the foregoing disposition, I need not address the parties" remaining contentions.