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Decision No. 16,030

Application of CAROL GILLEN for the removal of Nicholas Mauro as a member of the Board of Education of the City School District of The City of Middletown.

Decision No. 16,030

(March 3, 2010)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Semira Ansari, Esq., of counsel

STEINER, Commissioner.--Petitioner seeks the removal of Nicholas Mauro (“respondent”) as a member of the Board of Education of the City School District of the City of Middletown (“board”).  The application must be denied.

Prior to the May 2009 election, various groups within the district opted to have a “meet-the-candidates” forum.  The National Association for the Advancement of Colored People (“NAACP”), the Middletown Teachers Association (“MTA”) and the board each scheduled its own forum.

On April 28, 2009, the NAACP held a forum which was recorded and aired on the district’s public access channel.  Respondent, who is the board president, contacted district counsel to determine how to proceed in light of the fact that the forum had been video-taped by district personnel using district-owned equipment and aired without prior authorization from the board.  Based on advice of counsel, respondent contacted the superintendent to express his concerns regarding the taping and televising of the forums.  The NAACP forum was removed from the public access channel until the board could convene.

On or about May 5, 2009, the MTA meet-the-candidates forum was video-taped.  However, the MTA was advised that its forum could not be aired on the public access channel until the board voted on the matter.  On or about May 7, 2009, the board unanimously voted to televise the NAACP forum, but took no action with regard to MTA forum.  At that meeting, the lack of a moderator for the board forum was also discussed.  Subsequently, respondent notified the board that this forum was rescheduled due to the inability to obtain a moderator.  The board forum was eventually cancelled due to lack of participation.  This application ensued.

Petitioner alleges that respondent wilfully and intentionally violated board policies, election laws and acted improperly when he unilaterally and without board approval limited broadcasts on the district’s public access channel and rescheduled the board’s meet-the-candidates forum.  Petitioner contends that, as a result, respondent improperly manipulated district elections.  Petitioner requests that I remove respondent from the board.  Petitioner also requests that I obtain district correspondence between the board, its attorneys and the superintendent.

Respondent contends that petitioner lacks standing and that the appeal is moot.  Respondent also contends that he is not engaged in any wilful violation or neglect of duty warranting his removal.  Finally, respondent contends that he relied on the advice of counsel.

Initially, I must address 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.

Respondent argues that the application must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of Himmelberg and Little, 46 id. 228, Decision No. 15,490; Appeal of Riccinto, 46 id. 39, Decision No. 15,435).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of L.A., et al., 46 id. 450, Decision No. 15,561).  Here, petitioner considers herself aggrieved by respondent’s alleged unilateral action with respect to the public forums.  Since petitioner is a district resident and taxpayer, I find that she has standing to bring this application.

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).  Although respondent’s term as board president ended on July 1, 2009, his term as a member of the board does not end until July 2012.  Therefore, I decline to dismiss the petition as moot.

Education Law §306 authorizes the Commissioner of Education to remove a member of a board of education for a wilful violation or neglect of duty under the Education Law for a wilful disobedience of any decision, rule or regulation of the Board of Regents or the Commissioner of Education.  To be considered wilful, respondent’s actions must have been intentional with a wrongful purpose (Application of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752; Application of Brousseau, 35 id. 291, Decision No. 13,545.)  A board member who acts on the advice of counsel has not engaged in a wilful violation or neglect of duty justifying removal under Education Law §306.  (Application of Kavitsky, 41 Ed Dept Rep 231, Decision No. 14,672; Application of Fix, 39 id. 728, Decision No. 14,362).  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). 

On the record before me, petitioner has not met her burden of demonstrating that respondent engaged in any wilful or intentional misconduct warranting his removal from office.  Petitioner alleges that respondent acted unilaterally and without board approval and violated various board policies by ordering the superintendent to “stop taping and airing” the NAACP and MTA forums.  However, the language of the note from respondent to superintendent states that “the taping and televising of the meet the candidate night by the NAACP should not have been done without prior board approval.  Likewise, please do not allow for taping or televising of the MTA meet the candidate night; since, prior approval by the board was not arranged.  In the future, please contact the board for prior approval for these election related matters”.  The note clearly indicates that respondent, in his role as board president, was advising the superintendent that board approval should have been obtained prior to the taping and televising of the forums and indicates the desire to have the entire board consider the matter.  I am not persuaded by petitioner’s argument that respondent’s actions violated board policy 1120, which prohibits board members from exercising authority as individuals rather than a board, or the other board policies cited by petitioner.

In addition, respondent acted on the advice of counsel regarding the matter.  Therefore, I decline to find that respondent engaged in a wilful violation or neglect of duty justifying removal under Education Law §306.

Finally, petitioner alleges that respondent rescheduled a meet-the-candidates forum, thus violating board policy 1120 and interfering with the electoral process.  Respondent avers that the date was changed because the district was unable to obtain a moderator for the initial date.  On this record, I cannot find that respondent violated board policy 1120 or interfered with the holding of a meet-the-candidates forum.

I have considered the parties’ remaining contentions and find them to be without merit.