Application of FU-YUN TANG for the removal of Uri Kaufman, Michael Hatten and Murray Forman as trustees of the Board of Education of the Lawrence Union Free School District.

Decision No. 15,932

(June 23, 2009)

Elizabeth Meyerson, Esq., attorney for petitioner

Lamb & Barnosky, LLP, attorneys for respondents, Eugene R. Barnosky, Esq., of counsel

MILLS, Commisssioner--Petitioner seeks the removal of Uri Kaufman, Michael Hatten and Murray Forman (collectively “respondents,” individually referred to as “Kaufman,” “Hatten” and “Forman”) from the Board of Education of the Lawrence Union Free School District (“board”).  The application must be denied.

During the 2005-2006 school year, Forman was a board trustee.  Kaufman and Hatten were elected to the board on May 17, 2006.

During that school year, negotiations for a new teachers’ contract were ongoing.  A tentative agreement was reached in June 2006 and a vote on the contract was set for the board’s June 20, 2006 meeting.  On June 19, 2006, Forman and two other trustees initiated litigation seeking an injunction to prevent the board from voting on the contract.  The court denied the injunction and at its June 20, 2006 meeting, the board voted 4-2 to approve a new contract with the teachers’ union.  Petitioner claims that at this meeting Kaufman, who had been elected to the board, but not yet taken office, made remarks in opposition to the teachers’ contract, and also made derogatory comments concerning public school parents.  This application ensued.

Petitioner claims that Forman should be removed from the board for bringing the lawsuit to stop the teachers’ contract vote, for missing the board’s July 5, 2006 meeting, for missing a number of meetings and abstaining from several votes during the 2005-2006 school year, and for making allegedly threatening remarks at the June 20, 2006 board meeting.  Petitioner seeks Kaufman’s removal on the grounds that he directed allegedly divisive and inflammatory comments toward public school parents at that meeting.  In addition, petitioner contends that Kaufman’s political affiliation with a group that advocates greater funding for private schools and his writings in support of public funding of private schools[1] are in conflict with his duties and role as a board trustee.  Finally, petitioner claims that Kaufman and Hatten filed defective expenditure and contribution statements in violation of Education Law §1528.

Respondents generally deny the allegations and contend that the petition fails to allege a wilful violation of law, neglect of duty, or wilful disobedience of a decision, order or regulation of the Commissioner.  Respondents maintain that their actions do not constitute unlawful conduct warranting their removal from office and that their statements, writings and/or affiliations are protected under the First Amendment.  Respondents also argue that petitioner’s claims are untimely except the claim concerning Kaufman’s comments on June 20, 2006, which they assert occurred before he assumed office.  Respondents further allege that the Commissioner lacks jurisdiction over claims involving expenditure and contribution statements and that petitioner failed to join the board as a necessary party.  Finally, respondents request a certificate of good faith pursuant to Education Law §3811.

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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  In this case, because petitioner seeks only to remove Kaufman, Hatten and Forman and does not seek any relief against the board as an entity, the latter is not a necessary party to petitioner’s application (Applications of Eisenkraft, 38 Ed Dept Rep 553, Decision No. 14,092; Appeal of Foshee, 38 id. 346, Decision No. 14,051).

Petitioner’s claim that Kaufman and Hatten failed to file accurate expenditure and contribution statements in violation of Education Law §1528 must be dismissed on jurisdictional grounds.  Education Law §1530 gives the Supreme Court of the State of New York jurisdiction over such matters (Appeal of Johnson, et al., 45 Ed Dept Rep 320, Decision No. 15,334; Appeal of Coleman, et al., 42 id. 256, Decision No. 14,845). 

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).  Petitioner commenced this application on July 11, 2006.  Petitioner’s objection to Kaufman’s March 22, 2006 article in support of private schools must therefore be dismissed as untimely.  Petitioner’s remaining claims against Kaufman are that he made divisive and inflammatory comments at the June 20, 2006 meeting and is affiliated with a group that supports greater funding for private schools.  I find these claims to be timely.

With respect to Forman, petitioner’s claims are that (1) on June 19, 2006, he attempted to stop the teachers’ contract vote, (2) he missed seven board meetings during the 2005-2006 school year and a meeting on July 5, 2006, (3) he abstained from votes on 27 occasions during the 2005-2006 school year, and (4) he made threatening remarks at the June 20, 2006 meeting.  The record indicates that Forman’s absences during the 2005-2006 school year – the most recent of which was on June 6, 2006 – occurred more than 30 days prior to the commencement of petitioner’s application on July 11, 2006.  Petitioner’s claim challenging such absences is, therefore, untimely.

Petitioner argues that his claim concerning Forman’s abstentions during the 2005-2006 school year is timely because Forman’s “voting pattern continued through the June 20, 2006 meeting,” which occurred within 30 days of the commencement of this application.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an uncertified teacher (Appeal of Brown, 39 Ed Dept Rep 343, Decision No. 14,255), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Appeal of a Student with a Disability, 46 Ed Dept Rep 407, Decision No. 15,548; Appeal of Smalls, et al., 46 id. 246, Decision No. 15,496).

Petitioner alleges that Forman’s voting record “demonstrates a pattern of voting against any non-mandated spending on public schools, without regard to the merit of the vote before him.”  However, Forman submitted an affidavit in which he explains that he abstained from voting only “when the information supplied ... in connection with a proposition submitted to the Board was, in my view, inadequate to permit an intelligent vote.  I did every thing [sic] I could, however, to avoid an abstention when my vote was required for a quorum ....”  Forman also notes that the “overwhelming majority of my votes, 170 by petitioner’s count, were in support of the recommendations placed before the Board by the Superintendent and his administrative staff, while only 22 were in the negative.”  Based on the record before me, I cannot conclude that Forman’s voting record constitutes an unlawful ongoing action.  Therefore, this claim must be dismissed as untimely.

As to the merits, 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).  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).

Forman

Forman’s absence from the July 5, 2006 board meeting does not constitute a wilful violation or neglect of duty requiring his removal from office.  I note, however, that while petitioner’s claim that Forman also missed several meetings during the 2005-2006 school year is untimely, Forman does not deny having missed such meetings.  I remind Forman that regular attendance at board meetings is expected and that successive absences without sufficient excuse may result in a vacancy (see Education Law §2109).

Petitioner further argues that Forman should be removed because he, along with two other trustees, filed a lawsuit against the remaining four trustees, attempting to stop a vote on the teachers’ contract.  However, other than conclusory allegations, petitioner has introduced no evidence to establish that, in doing so, Forman acted intentionally and with a wrongful purpose.  Accordingly, I find no basis for removal on this ground.

Petitioner also seeks Forman’s removal based on “threatening” remarks he made at the June 20, 2006 board meeting.  The record contains a DVD of that meeting, at which Forman expressed his opposition to the teachers’ contract, stating:

[W]e commit to you that we will labor under this very difficult constraint that has been placed on the continuing board but make no mistake about it ... there is no free lunch out there and this ... [is] forcing future boards to make some very, very difficult decisions.

Contrary to petitioner’s assertions, I do not find that Forman’s comments rise to the level of threats, nor do they warrant his removal from the board.

Kaufman

The DVD also contains Kaufman’s statements in opposition to the teachers’ contract, which included reference to members of the audience as “you public school parents.”  However, respondents point out that Kaufman was not yet a trustee at the June 20, 2006 meeting (he was not sworn in until July 3, 2006).  In fact, when Kaufman attempted to speak from his seat on the dais, he was instructed to address the board from a microphone on the floor as a member of the public.  Thus, it is clear he was not on the board, or acting as a board trustee when the allegedly inflammatory statement was made.  As a result, any remarks made by Kaufman at the June 20, 2006 meeting cannot serve as the grounds for his removal as a trustee.

Petitioner also cites Kaufman’s membership on the board of governors of TEACH NYS as grounds for his removal.  Specifically, petitioner alleges that this organization “advocates for legislation diverting public school money to private education,” and that Kaufman’s membership therein constitutes a conflict of interest.  I take judicial notice of a verified affidavit submitted by Kaufman in connection with Appeal of McColgan and El-Rez (48 Ed Dept Rep ___, Decision No. 15,928) which 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 a board trustee.  Furthermore, prior Commissioner’s decisions have held that “[b]oard members and school officials may convey partisan positions on their personal time, working with other groups and resources, as long as no public resources are used” (Appeal of Goldin, 40 Ed Dept Rep 628, Decision No. 14,572; seeApplication of Gabryel, 44 id. 235, Decision No. 15,158; Appeal of Allen, 39 id. 528, Decision No. 14,300).  The record contains no evidence that public funds have been used in relation to Kaufman’s prior membership in TEACH NYS.  Other than petitioner’s own assertions, there is insufficient information in the record to warrant the removal of Kaufman based on his prior affiliation with this organization. 

Removal may be warranted where a board member’s conduct occurs during a board meeting and disrupts the meeting or interferes with the board’s ability to function (Application of Gabryel, 44 Ed Dept Rep 235, Decision No. 15,158; Application of Lilly, 43 id. 459; Decision No. 15,050; Application of Kozak, 34 id. 501, Decision No. 13,396).  However, on the record before me, petitioner has failed to establish that Kaufman’s or Forman’s conduct rises to this level.  There is no indication that their statements were aimed at other trustees or that they were intended to degrade or threaten other trustees.  Nor is there any evidence that this behavior interfered with the board’s ability to function.  On the record before me, therefore, I cannot conclude that their actions constitute a wilful violation or neglect of duty under the law.

Finally, 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 the legal fees and expenses associated with defending a proceeding arising out of the exercise of their powers or performance of duties as board trustees.  It is appropriate to issue a certification unless it has been established on the record that the requesting board member or trustee acted in bad faith (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Applications of Zimmerman, et al., 42 id. 205, Decision No. 14,823).  As indicated above, I find that the record fails to establish that respondents acted in bad faith.  Accordingly, I will issue a certification for the limited purpose of Education Law §3811(1) (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050).

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

THE APPLICATION IS DENIED.

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