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Decision No. 16,020

Appeal of ROBERT KUSHNER from action of the Board of Education of the East Williston Union Free School District regarding violation of district policies, and application for the removal of Ellen Ritz, Joann Kaplan, Robert Freier and Mark Kamberg from their positions on the board.

Decision No. 16,020

(February 6, 2010)

Guercio and Guercio, attorneys for respondents, John P. Sheahan and Tara E. Kahn, Esqs., of counsel

STEINER, Commissioner.--Petitioner appeals the actions of the Board of Education of the East Williston Union Free School District (“board”) and seeks the removal of Ellen Ritz, Joann Kaplan, Robert Freier and Mark Kamberg (collectively referred to with the board as “respondents”) from their positions on the board.  The appeal must be dismissed and the application for removal must be denied.

Board policy #2370 governs public participation at board meetings.  Prior to September 2008, the policy provided that “In addition to open time, the public may speak to agenda items at the time when these items arise.”   Board policy #2410, which applies to policy development, adoption, implementation and review states, in pertinent part,  “The Board will, at the second reading, review the revised policy, allow public discussion, modify it, if necessary, and then vote to accept or reject its adoption, or, if necessary, schedule for a third meeting.”  

At a September 22, 2008 board meeting, a proposed revised policy #2370 was presented as a “second reading”.  The revised policy increased the amount of open time for public participation and restricted public participation during agenda items at the discretion of the board.  A discussion regarding the revised policy ensued among board members.  Subsequent thereto, certain board members indicated a desire to vote on the revised policy and respondent Ritz, as board president, then moved the question to a vote.  At that point, petitioner sought to provide comment on the revised policy, but respondent Ritz refused to allow him to do so at that time.  The board voted to approve the revised policy #2370.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner contends that the board violated its policies by allegedly refusing to allow public discussion at the second reading of revised policy #2370.  Petitioner seeks an order rescinding revised policy #2370 and all board actions approved under the same.  Petitioner also requests that the Commissioner consider adopting a regulation requiring all school boards to allow the public to speak to agenda items at the time when they arise.  Petitioner further argues that the respondent board members knowingly and wilfully violated board policies and seeks their removal from the board. 

Respondents contend, among other things, that the petition fails to state a cause of action; petitioner has failed to meet his burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief; the Commissioner lacks the authority to grant certain relief; petitioner lacks standing to seek implementation of a Commissioner’s regulation overturning the board’s policy; and the petition is untimely in certain respects.  The individual respondents also request a certificate of good faith.

Initially, I must address several procedural issues.  Respondents object to petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondents contend that the appeal and application for removal must be dismissed as untimely as to respondent Kaplan.  On October 22, 2008, pursuant to §275.8 of the Commissioner’s regulations, my Office of Counsel authorized service of the petition on respondent Kaplan by certified mail, return receipt requested.  Petitioner provided an affidavit of service indicating that the petition was served in the authorized manner on October 22, 2008. Accordingly, I decline to dismiss the appeal and application as untimely as to respondent Kaplan.

I reject petitioner’s request that the Commissioner  “consider implementing a regulation that would require all School Boards to allow the public to speak to agenda items at the time when they arise.”  Such matters are properly for local boards of education to decide (see Education Law §1709 and Appeal of Looman, 39 Ed Dept Rep 370, Decision No. 14,262).

In addition, petitioner lacks standing to seek such relief.  Mere status as a resident and taxpayer in a school district is not sufficient to confer standing to challenge school district policies (Appeal of Ehnot, 37 Ed Dept Rep 648, Decision No. 13,948).  Petitioner has failed to establish that he is personally aggrieved by revised board policy #2370. 

With respect to the merits, a board has the right to control the agenda at board meetings, and there is no statutory mandate that requires a board to permit public input at its meetings (Appeal of Michalski, 33 Ed Dept Rep 505, Decision No. 13,130; Appeal of Martin, 32 id. 381, Decision No. 12,861).  However, although not required to do so by law, the board’s policies permit public participation.  The only remaining issue in this appeal is whether respondents followed the policies that were in effect when they revised policy #2370. 

Respondents submit affidavits from three board members indicating that it is the district’s practice and procedure that when a member of the community wishes to address the board, that individual presents himself or herself at one of two microphones set up at either side of the room or raises his or her hand.  They further aver that during the public discussion over the revision of policy #2370, no member of the public presented themselves at the microphones or raised their hand to indicate a desire to comment.  Accordingly, respondents contend that respondent Ritz acted appropriately when she denied petitioner the opportunity to comment on the revised policy after she had called for a vote on such policy.

Petitioner, a former board member, disputes respondents’ version of district practice and states that he waited to speak until after the board discussion as a courtesy to the board.  Petitioner further avers that the board practice is for the board president to affirmatively ask whether the public had any comment on the agenda item being discussed and that respondent Ritz did not do so before calling for a vote on the revised policy.

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).  Given the conflicting evidence presented in this appeal, I find that petitioner has failed to meet his burden.  There is nothing in the board’s policies that requires the board president to affirmatively ask members of the public for comment prior to calling for a vote.  No one raised their hand or presented themselves at a microphone or indicated in any way that they wished to comment during the public discussion of the proposed revisions to policy #2370.  Moreover, the board’s policy indicates that the president shall be responsible for the orderly conduct of the meeting and shall rule on such matters as the time to be allowed for public discussion.  Accordingly, based on the record before me, I cannot find that respondents violated board policies in enacting revised policy #2370.

The individual respondents have requested a certificate of good faith pursuant to Education Law §3811(1).  It is appropriate to issue such certification unless it is established on the record that the requesting respondents acted in bad faith (Appeal of Lilly, 47 Ed Dept Rep 268, Decision No. 15,692; Application of Berman, 46 id. 378, Decision No. 15,537; Application of Mazile, 45 id. 378, Decision No. 15,356).  Since there has been no such finding, I find that respondents are entitled to receive a certificate of good faith.

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