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Decision No. 15,194

Appeal of APRIL JONES-WHITE from action of the Board of Education of the Hempstead Union Free School District and Regina Lattimore-Gordon, President, regarding her removal as a trustee.

Decision No. 15,194

(March 29, 2005)

C. Robinson, Thompson & Assoc., LLP, attorneys for petitioner, Princess M. Tate, Esq., of counsel

Meyer, Suozzi, English & Klein, P.C., attorneys for respondents, A. Thomas Levin and Robert N. Zausmer, Esqs., of counsel


MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Hempstead Union Free School District ("respondent board") and its past president, Regina Lattimore-Gordon ("respondent Lattimore-Gordon"), to remove her as a trustee. The appeal must be dismissed.

Petitioner was initially elected as one of five trustees of respondent board in May 1998 and reelected to a second three-year term in May 2001. In October 2001, respondent board retained a special counsel to investigate six allegations against petitioner, including two allegations that be tween 1998 and 2001 she improperly charged to the district over $8,000 in personal expenses. In December 2001, the special counsel issued his confidential report. Although petitioner demonstrated the propriety of certain expenses totaling $3,053.43, she could not provide documentation for many other expenditures. Accordingly, after several discussions between petitioner and respondent board, the parties signed an agreement on March 1, 2002 that petitioner would repay the district $3,398.14 for disallowed expenses according to a specific payment schedule. The parties also agreed to meet within 60 days of the signing of the agreement to attempt to resolve an additional $2,242.08 remaining in dispute. According to respondents, although petitioner eventually repaid the full $3,398.14 pursuant to the March 2002 agreement, she failed to comply with the payment schedule and never arranged to resolve the disputed $2,242.08.

Respondents assert that in the spring of 2003, petitioner abused her trustee position by involving herself in a district investigation of a family member and by preventing respondent board from conducting official business, among other things. On July 1, 2003, respondents were presented with a petition signed by 537 citizens calling for petitioner's resignation or for respondent board to remove petitioner from office.

At respondent board's meeting on July 17, 2003, a majority of the board voted to proceed with formal charges seeking petitioner's removal pursuant to Education Law �1709(18). Petitioner was served with notice of seven formal charges of official misconduct and notice of a hearing scheduled for August 7, 2003. She was also notified of the charges and hearing date by certified letter dated July 18, 2003.

Petitioner was charged with seven counts of official misconduct by abusing her position as a trustee for her personal benefit. Charge number one alleged that between August 1998 and August 2001, petitioner charged various personal expenses on a district credit card and obtained reimbursement from the district for various other personal expenses not related to her official duties, and refused to account for or reimburse those expenses (including the $2,242.08 in contested funds enumerated in the March 2002 agreement). The remaining six charges involved allegations that she interfered with a district investigation concerning her brother and improperly exerted her influence as a trustee in several instances. Charges one and seven had previously been considered as part of the special counsel's 2001 investigation.

At the hearing on August 7, 2003, respondent board convened in executive session to hear the charges against petitioner, then reconvened in public session to deliberate further and issue its determination in the early morning hours of August 8, 2003. Respondent board sustained five of the seven charges of official misconduct against petitioner (charges 1 through 3, 5 and 6) and resolved to remove her from office pursuant to Education Law �1709(18). This appeal ensued. Petitioner's request for interim relief was denied on September 30, 2003.

Petitioner asserts that her removal from respondent board was motivated by the political animus of the other trustees, especially in light of the fact that in February 2003, the board had already considered and found no official misconduct for her failure to meet the terms of the March 2002 financial agreement. She claims, therefore, that reconsideration of the financial charges is barred by the doctrine of resjudicata. Petitioner also contends that the removal proceeding was not in accordance with Education Law, the Commissioner's regulations or �2410 of the official Hempstead policy manual. She contends further that the acts complained of do not constitute official misconduct and do not justify her removal from respondent board. She also maintains that the notice of charges and the August 7 hearing were insufficient; she was not afforded due process; and she was denied access to documents necessary for the filing of her petition. In addition, petitioner claims that respondent board should not have proceeded under Education Law �1709, but that the Commissioner should have exercised his jurisdiction under Education Law �306. Petitioner seeks reinstatement to her position as a trustee.

Respondents assert that the appeal is untimely. They also contend that the five sustained charges of official misconduct are supported by credible evidence. Respondents maintain that petitioner was afforded due process and had a full and fair opportunity to defend herself.

I will first address several procedural issues. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Passer, 44 Ed Dept Rep ___, Decision No. 15,160; Appeal of Colety, et al., 42 id. 162, Decision No. 14,806). For relief, petitioner requests an interim order (which was denied) and reinstatement to the board. The parties agree that petitioner's term of office expired. Therefore, since reinstatement is no longer possible, the appeal must be dismissed as moot.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner alleges that respondent board should have deferred to the Commissioner and sought to have her removed pursuant to Education Law �306. While Education Law �306 authorizes the Commissioner of Education to remove a member of a board of education in certain circumstances (see, e.g., Appeal and Application of Davis, 43 Ed Dept Rep 323, Decision No. 15,007; Application of Kavitsky, 41 id. 231, Decision No. 14,672; Application of Lilker, 40 id. 704, Decision No. 14,588), the board of education of a union free school district has the power, among other things, "[t]o remove any member of their board for official misconduct" (Education Law �1709[18]). Therefore, I find no merit to this claim.

I also find no merit to petitioner's due process claims. Section 1709(18) requires that a written copy of the charges must be served at least ten days before the hearing and the trustee must be "allowed a full and fair opportunity to refute such charges before removal." On the record before me, I find that petitioner was afforded sufficient due process to satisfy this standard. The record reflects that on July 17, 2003, respondents' attorney hand-delivered to petitioner a copy of the charges and notice of the hearing, and sent the same by certified letter dated July 18, 2003, and the hearing was held on August 7, 2003, more than ten days later.

Further, I find that the charges were sufficiently detailed to apprise petitioner of the conduct that would be at issue at the hearing. I also find that petitioner was not deprived of any due process by respondent board's alleged failure to respond to her discovery requests. Petitioner cites no statutory or constitutional right to formal discovery in a removal proceeding conducted pursuant to Education Law �1709(18). As long as petitioner receives adequate notice of the charges, due process is served (Appeals of Gill and Burnett, 42 Ed Dept Rep 89, Decision No. 14,785; Gill v. Mills and St. Ed. Dept., Supreme Court, Albany County, Bradley, J.; Judgment granted dismissing petition to review; October 6, 2003, n.o.r.).

Petitioner also cites no statutory or constitutional right to counsel in a removal proceeding conducted pursuant to Education Law �1709(18). The hearing record reflects that petitioner was afforded a full and fair opportunity to refute the charges and that she was permitted the opportunity to cross-examine the hearing witnesses, examine respondent board's documentary evidence, and introduce her own witnesses and evidence. Petitioner was served notice of the hearing on July 17, 2003 and had ample time to prepare for the hearing, especially since she had previously participated in the investigation of the most serious charge regarding the financial improprieties.

To constitute grounds for removal pursuant to Education Law �1709(18), the "official misconduct" must clearly relate to a board member's official duties, either because of the allegedly unauthorized exercise of the member's powers or the intentional failure to exercise those powers to the detriment of the school district ( Appeals of Gill and Burnett, supra; Appeal of Balen, 40 Ed Dept Rep 479, Decision No. 14,532; Appeal of Cox, 27 id. 353, Decision No. 11,973).

Based on my review of the record, including the hearing transcript, I find sufficient proof to establish grounds for petitioner' s removal based on charge one alone regarding the financial improprieties. The record contains the special counsel's December 2001 report of the investigation of over $8,000 of questioned expenses, including district credit card statements, board expense reports, and interviews with the district's assistant business manager, district clerk, board president and petitioner. The $3,398.14 in disallowed expenses included over $1,200 of undocumented cash advances and credit card charges for auto care, Ritz Camera, Walgreen's, Wal-Mart, Walbaums, and 16 months of AOL, among other personal items. The $2,242.08 in unresolved expenditures included credit card charges for People Magazine, rental cars, auto care and airline tickets, among other things. Not only were these items fully investigated in the fall of 2001, but petitioner also signed an agreement in March of 2002 to repay $3,398.14 for disallowed expenditures and executed a confession of judgment for the same amount to be held in escrow by the district's attorneys in the event she defaulted. Since petitioner did not adhere to the payment schedule specified in the agreement, respondent board could have filed the confession of judgment in court at any time. In addition, although petitioner agreed in 2002 to meet to resolve the $2,242.08 of questioned expenses, she had not taken any steps to do so by the time charges were preferred on July 17, 2003. Indeed, petitioner has yet to present any documentation demonstrating the legitimacy of these expenses.

For petitioner to assert that respondents erred in not requesting timely reimbursement from her or that her only error was solely a lack of documentation caused by various moves and relocations is disingenuous and not persuasive. The record indicates that petitioner was not only fully cognizant of respondent board's policies and rules regarding expenses, credit cards and reimbursements, but had been a member of respondent board and had voted to enact some of those policies. There is clear documentary evidence dating back more than five years that petitioner made improper charges and failed to reimburse the district for those charges. There can be no question that petitioner is guilty of official misconduct for improperly using district funds for her personal benefit and/or failing to provide documentation to justify the propriety of those expenditures.

Nor do I find relevant to the issue of petitioner's removal any alleged improper expenditures by other board members. Moreover, petitioner misstates the nature of respondent board's motion in February 2003. At that time, the board merely failed to pass a resolution to request that the Commissioner remove petitioner from the board; it did not make an affirmative finding that petitioner had not engaged in any misconduct. The mere fact that an earlier motion to request petitioner's removal failed to pass is irrelevant to the clear and rational finding of misconduct by respondent board at the hearing on August 7, 2003. Respondent board's finding of guilt on charge one is support ed by substantial evidence and provides more than sufficient grounds for petitioner's removal under Education Law �1709(18).

Finally, petitioner seeks a certificate of good faith pursuant to Education Law �3811 so that the district can reimburse her reasonable and necessary legal costs. Education Law �3811 provides for the reimbursement of legal expenses incurred by a member of a board of education arising out of the exercise of his or her powers or the performance of his or her duties, except where they are incurred to defend either "a criminal prosecution or an action or proceeding brought against [her] by a school district." School board members are not entitled to recover costs incurred in defending themselves in removal proceedings (In re Singer, 153 Misc. 755). Accordingly, petitioner is not entitled to indemnification for her legal expenses, and her request for a certificate of good faith is denied.

In light of this disposition, I need not address the merits of the remaining charges against petitioner or the parties' remaining contentions.