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Decision No. 15,570

Application of RHEA VOGEL for the removal of Dominick Riolo and John Davidson as members of the Board of Education of the Clarkstown Central School District.

Decision No. 15,570

(April 12, 2007)

MILLS, Commissioner.--Petitioner seeks the removal of Dominick Riolo and John Davidson (“respondents”) as members of the Board of Education of the Clarkstown Central School District (“board”).  The application must be denied.

On May 17, 2005, an election was held to fill two board seats for which petitioner and respondents were competing.  Prior to the election, on two occasions, respondents placed a flyer in a local newspaper which listed voter information such as polling locations, registration information and the date of the election.  The flyer also urged approval of the proposed budget and accompanying propositions and stated, “We further request that you vote to re-elect two incumbent trustees, Dominick Riolo and John Davidson, who have well proven their worthiness to serve on the School Board,” followed by respondents’ experience and an explanation of why they are an asset to the board.  Respondents were re-elected.  This appeal ensued.

Petitioner contends that respondents designed the flyer with the intention to mislead voters by creating the appearance that the board, as a whole, endorsed respondents’ election, and that voters were misled.  Petitioner maintains that the flyer impermissibly exhorted voters to elect respondents.  Petitioner contends that respondents violated district bylaws and policies, state laws and regulations and case law and administrative decisions.  Finally, petitioner alleges that respondents’ actions were willful with a wrongful purpose and improperly altered the outcome of the election.  Petitioner requests that I remove respondents from the board.

Respondents deny that the flyer was generated by the board or that it was produced at board expense.  Respondents maintain that the flyer was not misleading nor was it intended to be.  Finally, respondents allege that they are not guilty of a willful violation of law or neglect of duty.

A board of education may not use district funds to exhort the electorate to support a particular position in an election. (Phillips v. Maurer, et al., 67 NY2d 672).  Moreover, it is improper for a board of education as a corporate body to be involved in partisan activity in the conduct of a school district election (Appeal of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752; Appeal of Weaver, 28 id. 183, Decision No. 12,076).  Petitioner alleges that the flyer gave voters the impression that the board supported respondents’ election but makes no allegation of improper conduct by the board itself.  Moreover, the superintendent of schools avers that “the district had nothing to do with the flyer”.

Although an individual board member is not entitled to have his opinion published at district expense in board publications, this does not mean that he may not communicate his views at his own expense (Matter of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752; Matter of Wolff, 17 id. 297, Decision No. 9611).  Individual board members are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used (Appeal of Carroll, 33 Ed Dept Rep 219, Decision No. 13,030; Appeal of Weaver, 28 id. 183, Decision No. 12,076).  In this case, the record indicates that the flyer was prepared by and paid for solely by respondents.

Education Law §306 authorizes the Commissioner of Education to remove a member of a board of education for a willful violation or neglect of duty under the education law or a willful disobedience of any decision, rule or regulation of the Board of Regents or the Commissioner of Education.  To be considered willful, respondents actions must have been intentional with a wrongful purpose (Application of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752; Application of Brousseau, 35 id. 291, Decision No. 13,545).  Petitioner alleges that the use of the word “we” in the flyer was willfully intended to give voters the impression that the board supported respondents’ candidacy, and submit several affidavits in support of this assertion.  Respondents contend that the use of the term “we” referred to the two of them and was not meant to refer to the board or the district.  Respondents point out that the words "board,” “school board,” “district,” or “Clarkstown” appear numerous times in the flyer to designate those entities.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  On the record before me, I find that petitioner has failed to meet her burden of proving that respondents intentionally misled the readers of the newspaper or that their actions otherwise impermissibly affected the outcome of the election.  In view of the foregoing, I do not find that respondents’ actions rise to the level of intentional, willful misconduct necessary to justify their removal from office.

     Petitioner also contends that respondents violated district policies in connection with the distribution of the flyer.  Respondents deny violating all but the policy which states that the positions of individual board members should be identified as such.  However, a violation of a board of education bylaw or policy, by itself, simply is not a basis for removing a board member from office pursuant to Education Law §306 (Application of Michalski, 33 Ed Dept Rep 505, Decision No. 13,130; Application of Cox, 27 id. 124, Decision No. 11,892).

     In light of this disposition, I need not address the parties’ remaining contentions.