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Decision No. 15,705

Application of EDWARD LILLY for the removal of Lou Palmeri as a member of the Lewiston-Porter Central School District.

Application of EDWARD LILLY for the removal of David Schaubert as a member of the Board of Education of the Lewiston-Porter Central School District.

Decision No. 15,705

(December 21, 2007)

Hodgson Russ, LLP, attorneys for respondents, Karl W. Kristoff, Esq. and Elizabeth D. Carlson, Esqs., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Lou Palmeri and David Schaubert (“respondents”) from their respective positions as vice-president and president and members of the Board of Education of the Lewiston-Porter Central School District (“board”).  Because the applications present similar issues of fact and law, they are consolidated for decision.  The applications must be denied.

At a March 20, 2007 board meeting, petitioner, then a board member, proposed a motion concerning certain expenditures related to a coalition agreement to which the district is a party.  The motion was defeated by a vote of 2 to 4, with respondents Palmeri and Schaubert voting against it.

Petitioner alleges that, by opposing his motion, respondents intentionally violated the terms of the agreement with respect to permissible expenditures and, thus, jeopardized approximately $3,000,000 in district funding under the agreement.   Petitioner also asserts, in a conclusory fashion, that in July 2006 respondents also impermissibly awarded “a $2,000,000 No Bid ‘backroom deal’ to a contractor.” 

Petitioner claims that respondents’ actions warrant their removal from office.  Petitioner also seeks an award of damages against respondents, asking that they be held personally liable for the approximately $3,000,000 in jeopardized funding. 

Respondents raise several procedural objections including mootness.  They further maintain that damages are unavailable in an appeal to the Commissioner.  Respondents seek dismissal of the applications and request that I issue them certificates of good faith pursuant to Education Law §3811.

The applications must be dismissed as moot.  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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Respondents did not seek re-election to the board at the district’s May 15, 2007 annual meeting and, consequently, are no longer sitting board members.  Petitioner’s applications for respondents’ removal, therefore, are moot (Application of Carbone, 46 Ed Dept Rep 215, Decision No. 15,485).

With respect to petitioner’s request for imposition of personal financial liability upon respondents, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

Although the applications are denied for the foregoing reasons, one administrative matter remains.  Respondents have requested that I issue them certificates 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 in defending a proceeding arising out of the exercise of their powers or performance of 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 Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Application of Mazile, 45 id. 378, Decision No. 15,356; Application of Lilly, 43 id. 459, Decision No. 15,050).  In view of the fact that the applications here are dismissed on procedural grounds and there has been no finding that respondents acted in bad faith, I hereby certify solely for the purpose of Education Law §3811 that respondents appear to have acted in good faith.

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