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Decision No. 14,879

Application of RONALD V. SANTICOLA, on behalf of CAITRIE SANTICOLA, for the removal of Gail Hommel, Barbara Browne, David Kukle, Gina VanHentenryck, and Eric Johnson, as members of the Board of Education of the Hunter-Tannersville Central School District, and Ralph Marino, Jr., as Superintendent of Schools.


Hogan and Sarzynski, L.L.P., attorneys for respondents, Edward J. Sarzynski, Esq., of counsel


MILLS, Commissioner.--Petitioner seeks the removal from office of the members of the Board of Education and the Superintendent of Schools of the Hunter-Tannersville Central School District.  The application must be denied.

In June 2002, the district"s varsity softball coach/athletic director invited members of the varsity softball team, including petitioner's daughter, to an after season appreciation party at her house.  It is undisputed by the parties that the coach/athletic director lives in the same house and splits expenses with respondent board president Hommel ("Hommel").  The coach/athletic director, team members, an assistant coach who is also a parent of one of the team members, and Hommel attended the party on June 11, 2002.  Those in attendance ate pizza and drank soda and the party ended at 7 p.m.  Petitioner's daughter did not attend the party.  On July 2, 2002, petitioner sent a letter to the superintendent stating that such an off-campus party should not have been permitted and asked that the coach/athletic director be discharged.  On that same day, petitioner commenced this appeal.

Petitioner claims that Hommel has a conflict of interest that requires her removal from office because she lives in the same house and splits expenses with the coach/athletic director.  Petitioner claims that the other respondents should be removed because they are complicit in the alleged conflict of interest because they permitted the coach/athletic director to continue to be an employee of the district.  He also contends that respondents cannot objectively respond to petitioner"s complaint about the coach/athletic director.

Respondents maintain that Hommel has no illegal conflict of interest.  Respondents deny that there is any basis for their removal.  In addition, respondents contend that the appeal should be dismissed for lack of jurisdiction and because petitioner's claims are premature.  Respondents request that I disregard petitioner's memorandum of law, because it was not timely served, and petitioner's reply, because it reiterates allegations and arguments contained in the petition.  Respondents also request a certificate of good faith pursuant to Education Law "3811(1).

I will first decide the procedural issues.  Respondents contend that the Commissioner does not have jurisdiction over questions of conflicts of interest and employee discipline.  Petitioner, however, seeks respondents" removal for permitting an alleged conflict of interest to exist in violation of law.  Education Law "306 provides the Commissioner of Education with specific authority to remove board members and school officers, including superintendents of schools, for willful violation or neglect of duty under the Education Law or other laws pertaining to the public schools (See Application of Kavitsky, 41 Ed Dept Rep _____, Decision No. 14,672; Application of Lilker, 40 id. _____, Decision No. 14,588).  Accordingly, I will not dismiss this application for lack of jurisdiction. 

Respondents contend that the appeal is premature as to petitioner's July 2, 2002 complaint to the superintendent.  To the extent petitioner contends respondents could not objectively consider his complaint, I will not dismiss the appeal as premature.

As to the timeliness of petitioner's memorandum of law, the Commissioner"s regulations require petitioner to serve a memorandum of law on respondents within 20 days after service of the answer by mail, excluding the date of mailing and four subsequent days (8 NYCRR "276.4[a]).  The Commissioner may permit an untimely memorandum of law upon written application, setting forth good cause for the delay and demonstrating the necessity of such memorandum to a determination of the appeal.  In this case, petitioner was served with respondents" answer by mail on July 22, 2002.   Petitioner served his memorandum of law on respondents on August 26, 2002, 11 days after it was due.  Petitioner provided no written application setting forth the reason for the delay or demonstrating the necessity of the memorandum, as required by "276.4.  Accordingly, I have not considered petitioner"s untimely memorandum of law.

The record reveals that petitioner's reply contains arguments that buttress allegations in the petition and should have been included in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14).  A reply is not meant to support allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of S.S., 42 Ed Dept Rep _____, Decision No. 14,852; Appeal of Davies, 42 id. _____, Decision No. 14,776).  Accordingly, while I have examined petitioner's reply, I have not considered those portions that are not directly responsive to respondents" answer.

     The Commissioner of Education has authority to remove a board member or school official, including a superintendent of schools, when it is proven to the Commissioner's satisfaction that the board member or school official has engaged in a willful violation or neglect of duty under the Education Law or other law pertaining to the public schools or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Education Law "306; Application of Lilker, supra; Appeal of Gaul, et al., 40 Ed Dept Rep 105, Decision No. 14,432).  To be considered willful, respondents actions must have been intentional and with a wrongful purpose (Id.).  In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he seeks relief and the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Application of Lilker, supra; Appeal of Gaul, et al., supra).

Petitioner broadly alleges that Hommel's alleged conflict of interest violates board policy, Article 18 of the General Municipal Law, Education Law "2103(4) and prior Commissioner's decisions.  However, other than citing these provisions, petitioner does not offer an explanation of how they were violated.  I reviewed the board policies submitted and find no prohibition against a board member living in the same house as an employee of the district and splitting expenses.  In addition, petitioner has failed to establish in the record before me that this arrangement constitutes a conflict of interest as defined in Article 18 of the General Municipal Law. Nor does the Education Law provision cited by petitioner apply.  Further, petitioner does not cite any applicable Commissioner's decisions to support his position.  Thus, I find petitioner has failed to demonstrate that respondents engaged in any willful violation or neglect of duty under the law.

I have reviewed petitioner's remaining contentions and find them without merit.  With respect to respondents" 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 respondents appear to have acted in good faith.