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Decision No. 15,729

Application of PATRICIA J. SCHENK for the removal of Ronald K. Buggs, as Superintendent, and Thomas J. Gannon, Sr., as President of the Board of Education of the Eden Central School District.

Decision No. 15,729

(February 29, 2008)

Lorenzo & Cohen, attorneys for petitioner, Steven Bachmann Dietz, Esq., of counsel

Hodgson Russ, LLP, attorneys for respondents, John J. Christopher, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the Eden Central School District (“district”), seeks the removal of Ronald K. Buggs (“Buggs”) as Superintendent, and Thomas J. Gannon, Sr. (“Gannon”) as President of the Board of Education (“board”), of the Eden Central School District.  The application must be denied.

On August 12, 2007, Thomas Pace (“Pace”), a board member, sent an email and letter to Buggs, resigning from  the board.  On August 15, 2007, the board accepted Pace’s resignation.  At a board meeting held on September 19, 2007, the board approved the appointment of Diana Rae Walker (“Walker”) to fill the vacancy, notwithstanding petitioner’s opposition.  At its October 17, 2007 board meeting, the board voted unanimously to approve the minutes from the September 19, 2007 meeting.  This appeal ensued.

Petitioner alleges that the board appointed Walker outside the context of an official meeting in violation of the Open Meetings Law.  Petitioner also contends that on September 19, 2007, when petitioner opposed the motion to appoint Walker, Gannon prevented any member from speaking on the appointment.  Petitioner further alleges that Gannon failed to provide board members with a signed copy of Pace’s resignation letter, in violation of §2111 of the Education Law, invalidating Walker’s appointment.

Petitioner accuses Buggs of failing to rectify an unidentified health and safety issue, prohibiting petitioner from contacting district personnel and refusing to comply with petitioner’s request for documents relating to meetings, school finances and operations.

Respondents allege that the petition fails to state a cause of action; fails to distinctly state the willful violations of law, neglect of duty or willful disobedience and fails to contain a clear and concise statement of petitioner’s claim for relief.  Respondents also allege that the appeal is untimely; that the petition does not comply with the specific pleading requirements set forth in §§277.1(a) and 275.10 of the Commissioner’s regulations; that petitioner has failed to join necessary parties and that an appeal to the Commissioner is not the proper forum for a cause of action alleging a violation of the Open Meetings Law.  Respondents also request a certificate of good faith.

A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).

While I agree that the petition in this case is inartfully worded, I am also cognizant of the fact that petitioner was without the benefit of counsel at the time the petition was drafted.  Under such circumstances, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondents (Appeal of Blagrove, 32 Ed Dept Rep 629, Decision No. 12,937; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657; Application of a Child with a Handicapping Condition, 28 id. 519, Decision No. 12,187). In my judgment, the petition is not so deficient as to deprive respondents of the ability to respond to the allegations.  Indeed, respondents have submitted a responsive and detailed answer.  Therefore, I decline to dismiss the appeal for failure to state a clear claim.

However, portions of petitioner's application for removal are untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Bean, 42 id. 171, Decision No. 14,810).  Gannon was served on October 19, 2007 and Buggs was served on October 22, 2007.  To the extent that petitioner's application challenges actions that arose more than 30 days prior to those dates, the claims must be dismissed as untimely.

To the extent petitioner alleges that Gannon violated the Open Meetings Law by appointing Walker outside of an official meeting, I lack jurisdiction to address those issues.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

The appeal must also be dismissed for failure to join necessary parties to the extent petitioner’s claims rely on allegations that Pace’s resignation is invalid and that the appointment of Walker was unlawful.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).    Neither Pace nor Walker was joined as a respondent.  Petitioner’s failure to join them warrants dismissal of these claims.

The entire application must also be denied on the merits.  A member of the board of education or a superintendent of schools 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 Kavitsky, 41 Ed Dept Rep 231, Decision No. 14,672; Application of Lilker, 40 id. 704, Decision No. 14,588; Application of Kozak and Hetey, 40 id. 195, Decision No. 14,459).  To be considered willful, respondent’s actions must have been intentional and with a wrongful purpose.  In an appeal or removal application 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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Petitioner has failed to establish that the actions of Gannon or Buggs constitute a willful violation or neglect of duty under the law.

Petitioner alleges that Gannon’s and Bugg’s failure to provide petitioner with copies of vendor transaction reports is grounds for removal.  This claim is without merit. The record reveals that on September 7, 2007, petitioner sent Buggs an email requesting copies of the district’s vendor transaction reports for the past three years, identifying each vendor the district utilizes, together with corresponding budget codes.  Gannon responded to petitioner’s request, explaining the burden of such a request and offering two options.  Petitioner could request records (1) through a board resolution requesting that the documents be delivered to the board or (2) through a Freedom of Information Law request.  Petitioner did not pursue either alternative.  Since petitioner has failed to demonstrate that Gannon violated any legal duty, I find that plaintiff has not met her burden. 

Petitioner’s claim that Gannon must be removed because he refused to respond to petitioner’s emails is also without merit.  While Gannon admits in his affidavit that he advised petitioner that he preferred face-to-face communication and telephone communication over email, he continued to respond to petitioner’s emails.  In fact, both the answer and the reply contain numerous email messages between Gannon and petitioner.  Petitioner has failed to establish either a factual or legal basis for removal on this claim. 

Turning to petitioner’s allegation that Buggs instructed school personnel not to communicate with, or provide documents to her, petitioner has not met her burden of proof.  The answer contains affidavits from five other board members indicating they were not aware of any circumstances in which Buggs instructed school personnel not to communicate with petitioner and petitioner has failed to present an affidavit from any other school personnel suggesting otherwise. 

With respect to petitioner’s claim that Buggs must be removed because he permitted unsafe and unhealthy conditions to exist, this claim must also be dismissed.  Petitioner makes allegations but has failed to present any evidence of unsafe conditions or that Buggs was aware of these alleged conditions.   Therefore, this claim must also be dismissed.

Although the application is denied for the foregoing reasons, one administrative matter remains.  Respondents Buggs and Gannon have requested that I grant them a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of their duties as a member and president of the board.  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 Mazile, 45 Ed Dept Rep 378, Decision No. 15,356; Application of Lilly, 43 id. 459, Decision No. 15,050).  On the evidence in the record before me, I find that Buggs and Gannon are entitled to receive a certificate of good faith.

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