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Decision No. 15,888

Application of FRANK W. KOLBMANN for the removal of Garry F. Stone as superintendent of schools of the Holland Central School District.

Decision No. 15,888

(March 6, 2009)

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

MILLS, Commissioner.--Petitioner seeks the removal of Garry F. Stone (“Stone”) from his position as superintendent of schools of the Holland Central School District.  The application must be denied.

On May 19, 2008, petitioner filed with the district clerk a petition for a voter referendum to determine whether to include football in the district’s sports program.  At a May 27, 2008 school board meeting, petitioner inquired as to the status of his request for a voter referendum and was informed that it would be discussed “at the June meeting.”  At that time, the next regular board meeting was scheduled for June 23, 2008. 

On June 4, 2008, the district clerk gave notice of a special meeting of the board of education to be held on June 9, 2008, for the purpose of “discussing the Football [sic] petitions.”  At the June 9, 2008 meeting, the board rejected the petition for a voter referendum.

Petitioner alleges that Stone knowingly violated Education Law §§2004, 2007 and 2008(2), pertaining to the call of special meetings of school district voters, with respect to the petition.  Petitioner asserts that such violation warrants Stone’s removal from office.

Stone contends that petitioner has failed to join the board of education as a necessary party; that the acts on which petitioner bases his claims are necessary actions taken by a board of education, not a superintendent, and, as such, fail to provide a basis for Stone’s removal; and that petitioner has not set forth any other basis for his removal.  Stone also maintains that petitioner failed to provide proper notice pursuant to §277.1(b) of the Commissioner’s regulations and that the application is, in part, untimely.  He seeks an award of fees and costs, as well as a certificate of good faith pursuant to Education Law §3811.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).

Petitioner seeks Stone’s removal based on allegations that the convening of the June 9, 2008 special meeting of the board of education and notice thereof did not comply with certain requirements of the Education Law.  Accordingly, the basis for petitioner’s claim arose on June 9, 2008.  Petitioner served the petition herein on June 23, 2008, within the 30 day period required by the regulations.  However, the original petition did not contain the notice required under §277.1(b) of the regulations for an application for removal of a school district officer.  By letter dated June 26, 2008, my Office of Counsel advised petitioner of the error and indicated that the application would be considered timely if a corrected petition was served and filed within two weeks of the date of that letter.  Within the two weeks, petitioner re-served and filed a corrected petition with the required notice.  Therefore, I find that the application is timely and the notice is sufficient.

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 or superintendent has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Schenk, 47 Ed Dept Rep 375, Decision No. 15,729; Application of Kavitsky, 41 id. 231, Decision No. 14,672).  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioner alleges that Stone violated Education Law §§2004, 2007 and 2008(2).  Those sections set forth the statutory duties of a board of education in calling a special meeting of school district voters with respect to a petition for a voter referendum.  The statutory obligations are vested with the board not the superintendent.  Petitioner, therefore, has failed to establish any basis for Stone’s removal.

With respect to Stone’s request for an award of fees and costs, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

Stone also requests that I grant him a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify him for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of his duties as superintendent.  It is appropriate to issue such certification unless it is established on the record that the requesting individual acted in bad faith (Application of Schenk, 47 Ed Dept Rep 375, Decision No. 15,729; Applications of Lilly, 47 id. 307, Decision No. 15,705; Application of Berman, 46 id. 378, Decision No. 15,537).  In view of the fact that the petition is dismissed for the reason set forth above, and there has been no finding that Stone acted in bad faith, I find that he is entitled to receive the requested certificate.  

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