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Decision No. 16,113

Appeal of MARGARET McQUAID KAPLAN from action of the Board of Education of the East Meadow Union Free School District regarding her removal from office.

Decision No. 16,113

(July 27, 2010)

Manners & Associates, P.C., attorneys for petitioner, Carlo M. Fusco, Esq., of counsel

Ryan, Brennan & Donnelly, LLP, attorneys for respondent, John E. Ryan, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the East Meadow Union Free School District (“respondent” or “board”) to declare her office vacant and to remove her as a board member.    The appeal must be dismissed.

Petitioner was elected as a member of the board in May 2007.  On September 24, 2008, the board held a special meeting at which it initiated an independent investigation into allegations of impropriety against petitioner, and on October 21, 2008, met to discuss the investigation.  On October 22, 2008, petitioner was admitted to the hospital.  At an October 28, 2008 special meeting, the board scheduled a hearing for November 17, 2008.  Petitioner was released from the hospital on November 1, 2008 and on November 17, 2008 at 6:00 p.m., she retained counsel.  Petitioner’s counsel arrived late to the hearing and requested an adjournment after respondent’s evidence was presented.  The requested adjournment was denied. 

According to the hearing transcript, respondent voted to declare petitioner’s position vacant by operation of law for repeatedly failing to attend board meetings without valid excuse.  Respondent then voted to remove petitioner from office based on each of four additional charges: (1) failure to complete required training and/or to provide the required certification for such training, (2) failure to complete, sign and return to the district’s independent auditor the “related Party Disclosure Questionnaire,” (3) public disclosure of confidential and Executive Session information and (4) abuse of the authority of her office.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 30, 2008.

Petitioner contends that she was not furnished with a copy of the charges issued against her, and that she was not allowed to answer the charges in writing, that she has not committed any acts constituting misconduct and that the charges were not adequately proven against her.  Petitioner claims that her counsel was improperly denied an adjournment.  Petitioner requests a new hearing and that she be reinstated to her position. 

Respondent contends that the district afforded petitioner with notice of the charges and a hearing at which all five charges of misconduct against petitioner were properly sustained.

Education Law §2109 provides that board members who have failed to attend “three successive meetings of the board of which he [or she] is duly notified, without rendering a good and valid excuse therefore to the other trustees vacates his office by refusal to serve.”  Respondent relied on an audit memo from the internal auditor indicating that petitioner missed 12 meetings without explanation or excuse during the 2007-2008 school year, including four consecutive meetings during May and June 2008.  Respondent also relied on a listing of 2007-2008 board meetings and petitioner’s absences signed by the board secretary with a statement that she received no advance notification that petitioner would not attend these meetings.  

This listing indicates that petitioner missed 13 of the 2007-2008 meetings, that the four absences on May 22 and June 5, 24 and 29, 2008 were not consecutive meetings, (since there was a June 10, 2008 meeting for which petitioner was not marked absent) but that petitioner missed three consecutive meetings on September 4, 6 and 18, 2007. 

Petitioner has offered no evidence either at the hearing or in this appeal to rebut respondent’s evidence that she failed to attend these meetings without notification or that she was unable to attend these meetings, other than her own broad assertions that her absences were “either religious observances or [of a] medical necessity”.

Therefore, I find that respondent was not arbitrary and capricious in finding that petitioner vacated her office by failing to attend three meetings without adequate documentation or excuse, pursuant to Education Law §2109.

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