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Decision No. 15,964

Appeal of DEANN NELSON from action of the Board of Education of the City School District of the City of Jamestown regarding her removal as a board member.

Decision No. 15,964

(August 14, 2009)

Phillips, Lytle, Hitchcock, Blaine & Huber, attorneys for respondent, Michael Foley, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Jamestown (“respondent” or “board”) to remove her as a board member.  The appeal must be dismissed.

Petitioner was initially elected as a board member on July 1, 2003 and was re-elected to a three-year term on July 6, 2004.

By letter dated December 9, 2005, petitioner was served with written charges of official misconduct and a hearing notice.  The notice contained nine charges of improper misconduct including:  (1) unlawfully disclosing student identification numbers that constituted confidential, personally identifiable information; (2) refusing to comply with a board resolution directing petitioner to identify the person(s) to whom she released confidential, personally identifiable information; (3) wilfully refusing to comply with a board resolution directing petitioner to return confidential material she obtained in the course of her duties as a board member; (4) using her position as a board member to intimidate and threaten district personnel, specifically (a) a teacher, (b) the human resources director, and (c) the special education coordinator; (5) interfering with the ability of the board to function by taking detailed notes during executive session; (6) voting on recommendations for special education services in which she has a personal interest, without disclosing such interest; (7) voting against recommended special education services to students without regard to the merits of such recommendations; (8) engaging in activities that constitute a conflict of interest by appearing at meetings with district personnel as an advocate for students receiving special education services from the district; and (9) engaging in activities that conflict with her position or impair the performance of her duties by assisting students and appearing at meetings with district personnel as an advocate for students who are contemplating or are engaged in litigation against the district.

A hearing was held on June 13, 2006, during an open meeting of the board.  Following the hearing, the board reviewed the testimony and concluded that charges 1, 2, 3, 4(b), 4(c), 5, 7, 8 and 9 were proven and that charges 4(a) and 6 were not supported.  The board also found that charges 1, 2, 3, 4(b), 4(c), 7, 8 and 9 constituted official misconduct, while charges 5 and 6 did not.  Written findings of the board were served on petitioner’s counsel on July 7, 2006.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner denies that she engaged in any official misconduct and asserts that respondent violated her due process rights.  She requests that I overturn the board’s decision to remove her and reinstate her to her previous position.  She also requests that I annul a resolution passed by the board in September 2004 forbidding board members from reading individualized education programs (“IEPs”), which she alleges violates Part 200 of the Commissioner’s regulations and the Individuals with Disabilities Education Act (IDEA).  Finally, petitioner requests a certificate of good faith. 

With respect to the charges, petitioner maintains that she did not disclose any confidential information, but merely disclosed special education identification numbers.  Petitioner further alleges that the board’s resolution directing the disclosure of certain names violated her First Amendment rights.  She also alleges that a Grand Jury exonerated petitioner of the alleged abusive and threatening behavior toward the human resources director and therefore, this claim must be dismissed on the ground of double jeopardy.  Petitioner further contends that while she referred to the special educator coordinator as a “lackey,” inappropriate speech does not warrant removal.  Petitioner also maintains that while she may have attended board meetings on behalf of students, she could not know whether such students were contemplating litigation against the district. 

Respondent maintains that petitioner’s conduct constituted official misconduct and requests that I uphold the board’s decision to remove petitioner. 

Petitioner’s challenge to her removal and her request for reinstatement 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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350). Petitioner requested an interim order (which was denied) and reinstatement to the board. Subsequently, petitioner’s term of office expired. Therefore, since reinstatement is no longer possible, petitioner’s claims regarding her removal must be dismissed as moot.

Even if petitioner’s removal claims were not dismissed as moot, I would dismiss them on the merits.  First, I find no merit to petitioner’s alleged violations of due process.  Petitioner claims that the board failed to produce the superintendent under subpoena.  However, petitioner cites no statutory or constitutional right to formal discovery in a removal proceeding.  As long as a petitioner receives adequate notice of the charges, due process is served (Appeal of Jones-White, 44 Ed Dept Rep 347, Decision No. 15,194; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785; Judgment granted dismissing petition to review sub nom.; Gill v. Mills, et al., Sup. Ct., Albany Co., Bradley, J.; October 6, 2003, n.o.r.).

Petitioner also alleges that her due process rights were violated with respect to a certain meeting transcript which was admitted into evidence in support of charge 4(a).  Since the board did not find that charge 4(a) was supported by the evidence, this issue is academic and I need not address it.

To constitute grounds for removal pursuant to Education Law §1709(18), the "official misconduct" must clearly relate to a board member’s official duties, either because of the alleged unauthorized exercise of the member’s powers or the intentional failure to exercise those powers to the detriment of the school district  (Appeals of Gill and Burnett, 42 Ed Dept Rep 89, Decision No. 14,785; Appeal of Balen, 40 id. 479, Decision No. 14,532; Appeal of Cox, 27 id. 353, Decision No. 11,973).  Based on my review of the record, including the hearing transcript, I find sufficient proof to establish grounds for petitioner’s removal based on charges 2 and 3 alone. 

Charges 1 through 3 arose out of an incident that occurred in 2004 when petitioner sent a complaint letter to the State Education Department’s Office of Vocational and Educational Services for Individuals with Disabilities (“VESID”), requesting that VESID conduct an investigation of respondent’s special education programs, and alleging that the district was in violation of federal and State laws and regulations pertaining to the education of students with disabilities.  Attached to this letter was a report entitled “Special Education and Individual Education Plans:  Jamestown Public Schools” and a submission entitled “Problems Identified with IEP’s dated 9/23/03-6/22/04.”  Petitioner also distributed the complaint letter and accompanying documents to various media sources and newspapers. 

In a set of resolutions dated October 12, 2004, the board directed petitioner to identify all persons to whom she had released personally identifiable information and to return to respondent’s attorney copies of all IEPs, evaluations, reports, correspondence or other records containing personally identifiable information regarding students, which she obtained in her capacity as a board member.  By letters dated October 18 and 24 and November 22, 2004, petitioner denied releasing personally identifiable information, claiming that the numbers referred to in her report were numbers associated with documents, rather than student numbers.  She also suggested that she had been advised by the district’s director of pupil personnel services that all confidential information had been redacted from the IEPs before she viewed them. 

By letters dated October 21 and November 16, 2004, respondent’s attorney notified petitioner that the numbers in her report were student numbers, i.e. personal identifiers that the district assigns to each student in order to gain access to a variety of data.  Respondent‘s attorney also advised that these identifiers are used to link student data in the district’s computer programs.  He directed petitioner to comply with the October 12, 2004 resolution.

Petitioner refused to disclose the names of any persons to whom she disclosed the identification numbers, on the grounds that this information was not personally identifiable, confidential information.  Petitioner also refused to turn over the information she obtained, claiming it was part of her “research work” and that she has a personal ownership interest in the information. 

In addition to a board member’s general duties and responsibilities, General Municipal Law §805-a(1)(b) provides that no municipal officer or employee (including a school board member) shall “disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interests.”  Section 200.5(e)(2) of the Commissioner’s regulations requires school districts to preserve the confidentiality of personally identifiable data and information or records pertaining to students with disabilities and specifically includes, as part of the definition of personally identifiable data, a student number. 

Petitioner’s refusal to disclose the identity of the persons to whom she revealed such numbers, even after being advised that such information was considered confidential, and being ordered by respondent to do so, violated her duty to the district and the board.  Petitioner had no right to retain the information or copies of documents that she obtained in the course of her duties as a board member for personal research purposes.  Petitioner did not appeal respondent’s actions, but unilaterally defied its directives.  I find that these actions alone are a sufficient basis for petitioner’s removal.

With respect to petitioner’s request for a certificate of good faith, Education Law §3811(1) does not provide for reimbursement of legal expenses incurred to defend “a criminal prosecution or an action or proceeding brought against ... [a board member] by a school district ... including proceedings before the Commissioner of Education ....”  petitioner, therefore, is not entitled to a certificate of good faith because the application for removal was brought by the school district of which she was an officer (seeApplication of the Bd. of Educ. of the Brentwood Union Free School Dist., 48 Ed Dept Rep 12, Decision No. 15,777; Application of the Bd. of Educ. of the West Babylon Union Free School Dist., 21 id. 41, Decision No. 10,592).  Accordingly, petitioner’s request for a certificate of good faith must be denied.

Finally, I must dismiss petitioner’s request to annul the board’s resolution dated September 14, 2004.  Petitioner filed a complaint with VESID in 2004, which involved the same set of facts and raised exactly the same issues which petitioner raises in this appeal.  VESID applied the state complaint procedures set forth in §200.5 of the Commissioner’s regulations and conducted an investigation of petitioner’s complaint.  By letter dated December 10, 2004, VESID notified petitioner of its determination that the resolution was not in violation of Education Law §4402(2)(b)(2) or §§200.4(e)(1) and (2) of the Commissioner’s regulations.  

It is well settled that the commencement of a prior action or proceeding for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (seeAppeal of Qureshi, 43 Ed Dept Rep 504, Decision No. 15,066; Appeal of Romano, 43 id. 466, Decision No. 15,052; Appeal of Smolen, 43 id. 296, Decision No. 15,000).  It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another proceeding (Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451).  Moreover, an appeal to the Commissioner pursuant to Education Law §310 is not the proper forum for review of a determination by a State Education Department employee (seeAppeal of a Student with a Disability, 40 Ed Dept Rep 210, Decision No. 14,463).  Accordingly, I decline to consider petitioner’s claims with respect to the board resolution.

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