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Decision No. 15,353

Application of HEMPSTEAD PARENTS/ COMMUNITY UNITED for the removal of Betty Cross, Terry Grant, Thomas Parsley, Jr., Youssef Soufiane and Ralph Schneider as members of the Board of Education of the Hempstead Union Free School District.

Decision No. 15,353

(January 24, 2006)

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondents Cross, Grant, Soufiane and Schneider, Gilbert Henoch and Joseph E. Macy, Esqs., of counsel

Douglas L. Thomas, Esq., attorney for respondent Parsley

MILLS, Commissioner.--Petitioner seeks the removal of Betty Cross, Terry Grant, Thomas Parsley, Jr., Youssef Soufiane and Ralph Schneider ("respondents") from office as members of the Board of Education of the Hempstead Union Free School District ("board "). Petitioner also seeks a stay of certain actions of the board. The application must be denied.

Petitioner, an association of community members, seeks respondents' removal from office based upon a number of actions petitioner claims violate the guidelines of the Board of Regents, the General Municipal and Penal Laws, and the New York State School Board Association's Code of Conduct. Specifically, petitioner claims that respondents conducted a board meeting on October 21, 2004 with no agenda, insufficient knowledge of the resolutions to be discussed, and no public participation. Petitioner alleges that the board approved several motions at the meeting, including a motion to exclude the district's attorneys from the meeting, a motion to terminate the employment of the district's superintendent of schools without review of the superintendent's contract by the district's attorneys, a motion to hire a new superintendent without review of the proposed contract by the attorneys, and a motion to pay respondent Parsley's legal fees in another proceeding.

Petitioner also claims that respondents generally have failed to provide district students with a sound education, failed to "guard the district's finances," failed to exercise caution in their activities, and breached their duty of loyalty to the school district, citing the "Statement on the Governance Role of a Trustee or Board Member" issued by the Board of Regents. Petitioner also asserts that respondents have improperly interfered with the day-to-day operation of the school district and engaged in activities constituting a conflict of interest. In addition, petitioner alleges that respondent Parsley engaged in fiscal misconduct and was arraigned on criminal charges of grand larceny. Petitioner claims that these actions warrant respondents' removal from office.

As part of its appeal, petitioner sought a stay of unspecified board actions. On December 3, 2004, petitioner's request was denied.

Respondents contend that petitioner lacks standing to maintain the appeal. Respondents also assert that petitioner failed to establish any basis for their removal, and that they are entitled to certificates of good faith pursuant to Education Law �3811.

Initially, I note that petitioner's reply is untimely and contains material that should have been submitted with its petition. A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR �275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (id.). Respondents' affidavits of service indicate that they served their answers by mail on November 24, 2004.

Petitioner has submitted additional papers, pursuant to �276.5 of the Commissioner's regulations, challenging respondent Parsley's service of his answer. I have accepted petitioner's papers for consideration. Although petitioner challenges whether respondent Parsley properly served his answer by mail, petitioner admits receipt of the answer on November 27, 2004. Thus, petitioner's reply to the answer of respondents Cross, Grant, Soufiane and Schneider should have been served no later than December 8, 2004. Petitioner's reply to respondent Parsley's answer should have been served no later than December 7, 2004. Petitioner served its reply on December 11, 2004. The reply, therefore, is untimely.

The reply also contains material that goes beyond the scope permitted by the Commissioner's regulations. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Petitioner's reply contains new material and exhibits in support of allegations set forth in its petition that should have been submitted with the petition. For the above-noted reasons, petitioner's reply has not been considered as part of the record in this appeal.

Petitioner lacks standing to maintain the appeal. At the time of initiation of the appeal, Hempstead Parents/Community United was an unincorporated association of parents and residents of the district. An unincorporated association lacks standing to maintain an appeal under Education Law �310 (Application of Simmons, 43 Ed Dept Rep 7, Decision No. 14,899; Appeal of D 'Oronzio and D'Agostino, 41 id. 457, Decision No. 14,745). The petition is verified by two individuals only in their capacity as co-chairs of the association. Subsequent to the filing of the appeal, petitioner submitted additional papers, pursuant to �276.5 of the Commissioner's regulations, indicating that it incorporated under the New York State Not-for-Profit Corporation Law. Although I have accepted petitioner's papers for consideration, I note that incorporation does not operate retroactively. At the time the appeal was commenced, petitioner was an unincorporated association, and, thus, lacked standing to bring the appeal.

The notice of petition is also defective. The Commissioner's regulations require that the notice accompanying a removal application specifically advise the school officer that the application is being made for his or her removal from office (8 NYCRR �277.1[b]). In this case, petitioner failed to give such notice, and, instead, used the notice prescribed under �275.11(a) for appeals brought pursuant to Education Law �310. A notice of petition which fails to contain the language required by the Commissioner's regulation is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Parisi, 42 Ed Dept Rep 400, Decision No. 14,893; Application of Knapp, 41 id. 41, Decision No. 14,608; Appeal of Khalid, 40 id. 621, Decision No. 14,570).

The application is also moot, in part. The Commissioner will only decide 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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). According to records in the possession of the State Education Department, respondents Cross, Parsley and Soufiane are no longer members of the board. Accordingly, petitioner's request for their removal from office is academic.

In the request for relief, petitioner seeks a stay of unspecified actions of the board. Petitioner's request for a stay was denied on December 3, 2004. Because petitioner seeks no other relief with respect to the board's actions, beyond the stay request, that portion of petitioner's appeal also is moot.

Although the application is denied for the foregoing reasons, one administrative matter remains. Respondents have requested that I grant a certificate of good faith pursuant to Education Law �3811(1). Such certification is solely for the purpose of authorizing the board to indemnify respondents for legal fees and expenses incurred defending a proceeding arising out of their exercise of their powers or performance of their duties as board members. It is appropriate to issue such certification unless it is established on the record that the requesting board member or trustee acted in bad faith (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Zimmerman, et al., 42 id. 205, Decision No. 14,823). With respect to respondents Cross, Grant, Soufiane and Schneider, on the evidence in this record, I am constrained to issue a certification for the limited purpose of �3811(1), with the admonition that it is in no way intended to be construed as approval of any alleged actions. With respect to respondent Parsley, according to records in possession of the State Education Department, he was convicted of grand larceny in the fourth degree and petit larceny, as a result of his stealing money from a district employee. Therefore, I am unable to issue respondent Parsley a certificate under �3811 of the Education Law.