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Decision No. 15,757

Appeal of BRENT DUPRAS from action of the Board of Education of the Cambridge Central School District regarding the declaration of a board vacancy.

Decision No. 15,757

(June 5, 2008)

Pelagalli, Weiner, Rench & Thompson, LLP, attorneys for petitioner, Paul Pelagalli, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the action of the Board of Education of the Cambridge Central School District (“board” or “respondent”) declaring his position on the board vacant pursuant to Education Law §2109 and Public Officers Law §30.  The appeal must be dismissed.

Petitioner served as a member of the board from July 1, 2003 until September 25, 2007 and was board president from July 2005 until July 2006.  Petitioner attended all board meetings through June 1, 2007.  According to respondent, between June 4, 2007 and August 20, 2007 petitioner missed a total of eight board meetings - the regular meetings on June 4 and June 18, 2007, the special meetings on June 28, July 2, July 9, July 31 and August 20, 2007, and the July 10, 2007 organizational meeting.

On or about June 18, 2007, a letter of resignation purportedly authored by petitioner was sent via email to respondent’s district clerk.  Petitioner claims that this email was “inadvertently” sent from “someone else’s computer” and that he did not intend to resign.  At the July 10, 2007 organizational meeting, respondent accepted the June 18, 2007 resignation letter.

By letter to the district clerk dated August 18, 2007, petitioner stated that, while he had informed board president Don Boyd in June 2007 that he “needed some time away due to recent personal issues and would be considering resigning from the school board,” he never intended to resign his seat on the board and “did not send in any manner or sign any resignation document ....”

In a September 4, 2007 letter to petitioner, Mr. Boyd stated that petitioner “did not speak to me as board president stating that [he] needed some ‘time away.’  Nor did I give any approval [for petitioner] to ‘take time away’ which would cause [him] to miss Board meetings.”

By letter dated September 24, 2007, petitioner’s attorney informed respondent’s attorney that petitioner “did not miss three successive meetings since he was unaware of several meetings” and that he “could not attend the August 20 regularly scheduled meeting as the Board had acted to accept his ‘resignation’ on July 10, 2007.”

At its September 25, 2007 meeting, the board voted to declare petitioner’s seat vacant pursuant to Education Law §2109 and appointed Debra Blanchfield to fill the vacancy.  Petitioner argues that these actions were improper and must be annulled.  Petitioner also seeks reinstatement to his seat on the board.

Respondent argues, interalia, that the appeal must be dismissed for petitioner’s failure to join Debra Blanchfield as a necessary party and for his failure to state a claim upon which relief may be granted.

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).  Petitioner seeks reinstatement to the seat on the board currently held by Debra Blanchfield.  Since petitioner’s request for reinstatement would directly affect Ms. Blanchfield’s status as a board member, she is a necessary party to this appeal.

Petitioner commenced this appeal by service on respondent on October 18, 2007.  However, he did not seek to file an amended petition joining Ms. Blanchfield until November 16, 2007, nearly one month after the commencement of this appeal and more than 30 days after the board’s September 25, 2007 meeting.  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).  Section 275.1 of the Commissioner’s regulations provides that after an appeal is commenced, “no party shall be joined ... except by leave or direction of the Commissioner of Education.”  Because petitioner offers no good reason for his delay, his attempt to join Ms. Blanchfield is untimely and the appeal must be dismissed for failure to join a necessary party (Appeal of Gilmore and Jordon-Thompson, 42 Ed Dept Rep 334, Decision No. 14,874; Appeal of Gargan, 40 id. 465, Decision No. 14,528; Appeal of Brosseau, 39 id. 397, Decision No. 14,271).

In addition to being untimely, petitioner’s amended petition was not properly verified.  Section 275.5 of the Commissioner’s regulations provides, “All pleadings shall be verified.  The petition shall be verified by the oath of at least one of the petitioners ....”  A copy of the original petition received by my Office of Counsel on October 24, 2007 contains a verification by petitioner dated October 16, 2007.  However, when petitioner submitted his amended petition, he merely attached a copy of the original verification (including the October 24, 2007 date stamp from my Office of Counsel).  It has been consistently held that when a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of Booker, 40 id. 447, Decision No. 14,523; Appeal of Phillips, 40 id. 241, Decision No. 14,471).  In this case, I will not excuse this omission as petitioner was represented by counsel.  Therefore, I have not accepted the amended petition.

Even if the appeal were not dismissed for failure to join a necessary party, it would be dismissed on the merits.  Education Law §2109 provides that a board member who “refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse therefore ... vacates his office by refusal to serve.”  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 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 maintains that respondent erred in declaring his seat vacant because he provided “a good and valid excuse” for missing the board’s June and July 2007 regular meetings.  In support of his position, petitioner cites Appeal of Rowe, et al., 31 Ed Dept Rep 280, Decision No. 12,642, and Application of Shader, 31 id. 252, Decision No. 12,634.

Petitioner’s reliance on these appeals is misplaced.  In Appeal of Rowe, a board member suffered a back injury and “notified the board of his inability to attend meetings and provided medical documentation of his condition.”  I stated that “[b]ecause personal illness is a valid excuse under the law for failure to attend board meetings ... I am constrained to find that [the board member] has not vacated his position ....”  In Application of Shader, the board member “presented evidence that [his] absences were due to an extended stay in Florida.  Respondent board member had the approval of the other board members prior to taking the vacation, and the board was satisfied with his excuse.  Where the board of education has approved the absences of a board member, I generally will not substitute my judgment for that of the board ....”  In the instant appeal, petitioner has introduced no evidence, other than his own assertions, that he obtained board approval before missing several board meetings.  Moreover, petitioner has not offered personal illness as an excuse for his failure to attend board meetings.  Rather, petitioner claims that he missed board meetings due to “an emotionally draining estrangement from [his] spouse [which] involved court proceedings.”

Indeed, as part of respondent’s verified answer, board president Don Boyd submitted an affidavit in which he states that petitioner “never informed me or the Board about his meeting absences, nor did he ever request a leave of absence from the board.”  This statement is supported by an affidavit from board member John Cummings, who states that he is “unaware of any prior notification of [petitioner’s] absences from the Board of Education meetings held in June and July 2007.  [Petitioner] did not provide the Board of Education with any excuse for his absences until August 2007.”  Further, the affidavit of board member Jeffrey Ravreby states:

My personal telephone records ... indicate that I made multiple cell phone calls to [petitioner] during the period of mid-May to mid-June, 2007 ....  I left two long messages of five minutes or more on May 12, 2007 and May 19, 2007.  Thereafter, I left shorter messages on May 18, 22, 2007 and June 12, 15 and 19, 2007.  I asked [petitioner] to call me on each of these occasions.  [Petitioner] never returned my calls.  It is my understanding that he also failed to return many telephone calls from other Board members during this time period.

Petitioner also claims that the June 18, 2007 letter of resignation was “inadvertently” sent from “someone else’s computer” and that he never intended to resign his board seat.  However, respondent submits an affidavit from board member Michael Kelly, who states:

On or about June 14, I spoke with [petitioner] regarding his service on the Board of Education.  We discussed the possibility of his resignation, and I tried to convince him to stay on the Board.  He stated that he would either ask for a leave of absence ... or would resign.  To my knowledge, [petitioner] never asked for a leave of absence from the Board of Education .... Based on our conversations, I was convinced that [petitioner] would be attending the June 18, 2007 Board meeting.  I was surprised and disappointed when I arrived at the meeting and he was not present.  I went to [petitioner’s] daughter’s softball game in an effort to convince him to attend the [June 18, 2007] meeting.  [Petitioner] stated he would not be attending the meeting .... During that conversation, [petitioner] asked for the email address for the District Clerk.  Shortly before the start of the June 18, 2007 Board meeting, I met [the district clerk] in the parking lot.  I informed her that [petitioner] wanted her email address in order to resign.  I called [petitioner] again by cell phone, and provided him with the email address that [the district clerk] dictated to me.  I continued into the building, and the regular Board meeting was held.  During the executive session ... [the district clerk] provided us with an email which stated it was from [petitioner], and that he was resigning effective immediately.

Respondent also submits an affidavit from the district clerk, who explains that her private school district email address “is not publicly available ....  As I have given out this particular email address to very few people, I believed that the [June 18, 2007] email was from [petitioner].”  Other than his assertion that this email was sent inadvertently, petitioner offers no explanation as to the sender’s identity or how and why the message was sent.

Petitioner also claims that, while he missed the board’s “June and July regular meetings due to personal circumstances,” he “never received notice of any of the intervening meetings, which were all special meetings.”  However, the district clerk states in her affidavit that petitioner received “personal notice of the June 4 and June 18 meetings.”  In fact, the district clerk explains that in May 2007, she was asked to schedule a special meeting for June 5, 2007 and that, when she contacted petitioner, “he stated that he could not attend on June 5, 2007, but could attend on June 4, 2007.  The meeting was moved to June 4, 2007 based on [petitioner’s] statement.  However, he failed to attend that meeting.”  The district clerk also explains that “[i]n March 2007, [petitioner] voted to approve July 10, 2007 as the District’s organizational meeting, thus having knowledge of that meeting date.”  Finally, the district clerk notes that the meetings on “June 4, 18, 28, 2007 and July 10, 31, 2007 were advertised in all official newspapers of the District.  The meetings of July 2, 9, 31, 2007 and August 20, 2007 were posted internally consistent with the Open Meetings Law.”

Although petitioner asserts that he provided the board with a valid excuse for his absences and did not vacate his seat, he submits no evidence to support his contentions.  Moreover, respondent has submitted sworn statements from board members and the district clerk which directly contradict petitioner’s claims.  Based on the record before me, I cannot conclude that respondent abused its discretion in determining that petitioner had vacated his seat on the board.