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Decision No. 15,485

Application of JOSEPH D. CARBONE for the removal of David Blackmore, Scott Ericson, Russ Hampel, Lisa Kelly and Michael Yacubich as members of the Board of Education of the Shoreham-Wading River Central School District.

Decision No. 15,485

(November 13, 2006)

Littler Mendelson, attorneys for respondents, David M. Wirtz, Esq., of counsel

MILLS, Commissioner.--Petitioner, a former board member, seeks the removal of David Blackmore, Scott Ericson, Russ Hampel, Lisa Kelly and Michael Yacubich (“respondents”) from office as members of the Board of Education of the Shoreham-Wading River Central School District (“board”).  The application must be denied.

On May 17, 2005, the voters of respondents’ district rejected the budget proposed by the board.  The board met on May 24, 2005 to discuss its options.  Apparently, district officials recommended that the budget be resubmitted on June 21, 2005.  The Interim Assistant Superintendent for Business had prepared a memorandum dated May 19, 2005 outlining a potential schedule for the budget re-vote.  That memorandum stated that a budget statement, including the final dollar amount of the new budget, had to be available to district voters by June 7, 2005 if the re-vote were to be held on June 21.  At the May 24 meeting, the board decided to conduct an additional budget work session on May 31, 2005 and to hold a budget hearing on June 14, 2005.

On May 31, 2005, the board conducted its planned budget work session.  On June 2, 2005 the board published a notice stating that the re-vote would be conducted on June 21.  That notice stated that a copy of the budget statement would be available during the 14 days immediately preceding the re-vote at all district school buildings.

 The board met again on June 7, 2005 and resolved to submit the same budget at the June 21 election.  The next day, the District Clerk mailed absentee ballots that set forth the same gross dollar amount as the previous budget to voters who had applied for them.  On June 9 the board again published notice that the re-vote would be held on June 21.  On June 13, the board arranged mailing of a budget notice to all district residents, setting forth the total dollar amount of the proposed budget, and held a budget hearing the next day.  On June 16, the district mailed a newsletter stating that it was resubmitting the original budget to the voters.  The re-vote was conducted on June 21 and the voters again rejected the budget.

Because the board did not decide until the evening of June 7, 2005 that it would resubmit the same budget on June 21, it did not make a new budget statement and absentee ballots, showing the total dollar amount of the proposed budget, available to district voters until June 8.   Petitioner asserts that this violated the requirements of the Education Law that a budget statement be available 14 days before a special meeting.  He further contends that respondents knew they were not complying with the law and chose not to reschedule the vote because, had they done so, two new board members would have been seated and could have participated in the budget determination.

Respondents assert that petitioner has failed to state a claim upon which relief may be granted.  They deny that they violated any applicable law or acted with a wrongful purpose and maintain that they are entitled to certificates of good faith pursuant to Education Law §3811. 

Initially, I must address several procedural matters.  Petitioner claims that respondents’ memorandum of law is untimely and asks that it be disregarded.  However, an extension of time to file the memorandum was granted by my Office of Counsel and it was timely submitted in accordance with that extension. 

In their memorandum of law, respondents assert for the first time that petitioner lacks standing to bring this application and that the matter has become moot because the budget was defeated at the re-vote.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id 509, Decision No. 14,540).  Accordingly, I have not considered the defenses raised for the first time in respondents’ memorandum of law.

The application is 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).  Respondents Kelly and Yacubich are no longer members of the board.  Accordingly, petitioner’s request for their removal is academic.

A member of the board of education may be removed from office pursuant to Education Law §306 when it is proven 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 Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Kavitsky, 41 id. 231, Decision No. 14,672; Application of Lilker, 40 id. 704, Decision No. 14,588).  To be considered willful, respondents’ actions must have been intentional and with a wrongful purpose.  In an appeal or removal application to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR §275.10; Application of Lilly, supra; Application of Lilker, supra).  Removal from office is a drastic remedy that should be taken only in extreme circumstances (Application of Cimino, 39 Ed Dept Rep 583, Decision No. 14,319; Application of Brennan, 35 id. 214, Decision No. 13,520).

In this case, the acts about which petitioner complains do not rise to the level of willful misconduct justifying removal.  Petitioner correctly points out that respondents did not decide to resubmit the same budget until June 7, 2005.  Accordingly, a statement of the dollar amount of the proposed budget was available 13 days in advance of the special meeting and not 14 days in advance as required by respondents’ own notice and Education Law §§1716 and 1804.  However, petitioner has failed to submit any evidence to support his contention that respondents chose this schedule to prevent new board members from participating in the budget determination.  Petitioner has also failed to present any evidence that voters lacked effective notice or that the election failed to reflect the will of the voters.  Nor has he established that any voter who sought to obtain an absentee ballot was unable to do so or that any absentee ballots were received too late to be counted.  Moreover, the record demonstrates that respondents made significant efforts in the 13 days before the election to notify all district voters that the same budget would be resubmitted.  In this context, technical violations of the notice requirements would not provide sufficient grounds to invalidate the election (see Education Law §2010; Appeal of Bartosik, 37 Ed Dept Rep 541, Decision No. 13,992).  I likewise find that respondents’ actions do not provide a sufficient basis to warrant removal.  I do, however, urge respondents to be scrupulous in their future budgetary practices.

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 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).  As set forth above, I find that the record fails to establish that respondents acted in bad faith.  Accordingly, I will issue a certification for the limited purpose of Education

Law §3811, with the admonition that it is not to be construed as condoning respondents’ actions.