Appeal of GARVAN McCOLGAN and LEILA EL-REZ from action of the Board of Education of the Lawrence Union Free School District regarding transportation guidelines, and application for the removal of Uri Kaufman, Michael Hatten, Murray Forman and David Sussman as board trustees.

Decision No. 15,928

(June 17, 2009)

Elizabeth Meyerson, Esq., attorney for petitioners

Minerva & D’Agostino, P.C., attorneys for respondents, Melinda Sims, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the actions of the Board of Education of the Lawrence Union Free School District (“board”) in approving certain pre-kindergarten (“pre-k”) transportation guidelines.  Petitioners also seek the removal of Uri Kaufman, Michael Hatten, Murray Forman and David Sussman (individually referred to as “Kaufman,” “Hatten,” “Forman” and “Sussman”) from the board.  The appeal must be dismissed and the application must be denied.

On March 26, 2007, the board proposed a transportation referendum to change the mileage limitation for resident public and non-public school students and to provide pre-k transportation under certain circumstances.  The transportation measure was approved by the district’s voters on May 15, 2007.[1]

At its June 19, 2007 meeting, the board approved “Guidelines for Non-Public Pre-Kindergarten Transportation” (“guidelines”), which amended the transportation measure.  This appeal ensued. 

Petitioners contend that the adoption of the guidelines would result in an additional cost over that approved by the voters in May 2007.  Petitioners maintain that the board’s approval of the guidelines constitutes an abuse of discretion and ask that I “vacate” the guidelines.  Petitioners also raise several objections to the notice and time of the board’s June 19, 2007 meeting and allege that the board violated the Open Meetings Law. 

Petitioners seek the removal of Kaufman, Hatten, Forman and Sussman on the grounds that they allegedly breached their fiduciary duty and duty of loyalty to the district by voting in favor of the guidelines.  Petitioners also allege that Kaufman directed inflammatory comments toward public school parents at a June 20, 2006 board meeting, and that his political affiliation with TEACH NYS, a group that advocates greater funding of private schools, is in conflict with his duties and role as a trustee.  In addition, petitioners claim that Forman missed a number of board meetings and abstained from several votes during the 2005-2006 school year and made allegedly threatening remarks at a June 2006 board meeting.

Respondents argue, interalia, that adoption of the guidelines was necessary due to safety issues and legal requirements. Respondents contend that the actions of Kaufman, Hatten, Forman and Sussman do not constitute unlawful conduct warranting their removal from office.  Finally, the individual respondents request a certificate of good faith pursuant to Education Law §3811.

Initially, I must address a procedural issue concerning the record in this appeal.  Respondents requested permission to submit an amended answer to include an additional affirmative defense. Specifically, respondents seek to raise an issue with respect to the notice of petition.

The Commissioner may permit or require the service and filing of additional pleadings upon such terms and conditions as he may specify (8 NYCRR §275.3[b]).  Respondents do not claim that new facts or circumstances arose subsequent to the filing of their original answer that would require an amendment thereto, nor have they shown that they lacked the opportunity to adequately respond to the petition and application in their original answer.  Indeed, respondents’ original answer includes a number of affirmative defenses, including defenses specifically responsive to petitioners’ removal application.  Under these circumstances, I will not permit an amended answer.

Petitioners’ challenge to the board’s approval of the guidelines 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  On August 31, 2007, I sustained, in part, petitioners’ challenge to the pre-k transportation measure, approved by district residents on May 15, 2007, on the grounds that the board had no authority to use district resources to provide such transportation (Appeal of McColgan, et al., 47 Ed Dept Rep 132, Decision No. 15,650 [“McColgan I”]).  The board challenged this determination in an Article 78 proceeding.  By decision dated December 7, 2007, the Albany County Supreme Court dismissed the board’s challenge and upheld my determination, holding that “Education Law §3635 neither mandates nor expressly authorizes school districts to provide transportation to pre-k students.”

Although the board filed a notice of appeal, it did not perfect its appeal within the required time frame (22 NYCRR §800.12; seeJemzura v. Mugglin, 207 AD2d 645, appeal dismissed 84 NY2d 977, reconsideration dismissed 84 NY2d 1025, rearg denied 85 NY2d 955, 86 NY2d 779).  As a result, the board is bound by my decision in McColgan I which ordered the board to “fully comply with Education Law §3635 and approve transportation policies in strict compliance with the statutory requirements” and “refrain from using district resources to transport pre-k children.”  Because the pre-k transportation measure has been nullified, the board’s subsequent guidelines based on such measure are also rendered null and void.  Petitioner’s challenge to such guidelines must, therefore, be dismissed as moot.

Petitioners’ Open Meetings Law claims must be dismissed on jurisdictional grounds.  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 L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Hubbard, 45 id. 466, Decision No. 15,383; Appeal of Hubbard, 45 id. 451, Decision No. 15,379).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

In addition, certain claims must be dismissed as 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 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).  Petitioners commenced their application for removal on or about July 13, 2007.  Their claims regarding Kaufman’s and Forman’s conduct during the 2005-2006 school year are therefore untimely. 

Petitioners object to Kaufman’s affiliation with TEACH NYS.  However, Kaufman submitted an affidavit in which he states that he “resigned [his] position on the Board of Governors of TEACH NYS in June 2006, prior to the date [he] took [his] oath of office as trustee.”  Petitioners submit no evidence to the contrary.  Therefore, petitioners’ claim that Kaufman’s role with TEACH NYS conflicts with his duties as a board trustee must be dismissed.

Petitioners seek the removal of Kaufman, Hatten, Forman and Sussman on the grounds that they breached their fiduciary duty and duty of loyalty to the district by voting in favor of the guidelines.  A member of a board of education 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 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 the Commissioner of Education (Application of Gentile, 47 Ed Dept Rep 438, Decision No. 15,747; Application of Giardina, 46 id. 524, Decision No. 15,583; Application of Lilly, 43 id. 459, Decision No. 15,050).  To be considered wilful, respondent’s actions must have been intentional and with a wrongful purpose.  Removal from office is a drastic remedy that should be taken only in extreme circumstances (Application of Gentile, 47 Ed Dept Rep 438, Decision No. 15,747; Application of Giardina, 46 id. 524, Decision No. 15,583; Application of Cimino, 39 id. 583, Decision No. 14,319).

Kaufman, Hatten, Forman and Sussman voted in favor of the transportation guidelines on June 19, 2007, prior to my decision in McColgan I and the Albany County Supreme Court’s subsequent ruling upholding my determination.  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).  Petitioners have not met their burden of showing that respondents knew or should have known that the provision of pre-k transportation was improper.  On the record before me, therefore, I cannot conclude that their actions constitute a wilful violation or neglect of duty under the law.

Finally, the individual respondents request that I issue 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 duties as board trustees.  It is appropriate to issue such certification unless it is established on the record that the requesting board member or trustee 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).  In view of this decision, and the fact that there has been no finding that the individual respondents acted in bad faith, I find that they are entitled to receive the requested certificate.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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