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Decision No. 16,166

Application of LARRY D. WORNUM for the removal of Constance R. Clark-Snead as Superintendent of the Westbury Union Free School District.

Decision No. 16,166

(November 30, 2010)

Jaspan Schlesinger, LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel


Steiner, Commissioner.--Petitioner seeks the removal of Constance R. Clark-Snead (“respondent”) as Superintendent of the Westbury Union Free School District (“district”). The application must be denied. 

At the time this proceeding was commenced, petitioner was a member of the district’s board of education (“board”).  Petitioner alleges that respondent engaged in a pattern of “bad acts.”  Specifically, he contends that respondent misled the board concerning a tax lien on, and a possible foreclosure of, a church-owned property; that she authorized district expenses without board approval; that she brought an appeal before the Commissioner of Education without school board approval; that she violated the Freedom of Information Law (“FOIL”); and that she misled the board about having contacted various religious institutions about possible space for prekindergarten classes.  

Respondent contends that petitioner has failed to provide any basis for removal, that certain allegations are untimely, that certain allegations are moot and that the Commissioner lacks jurisdiction over FOIL and the Open Meetings Law.

I must initially address several procedural issues.  Petitioner faxed to my Office of Counsel a purported reply to respondent’s answer.  The reply is not verified, as required by §275.5(a) of the Commissioner’s regulations and petitioner failed to submit proof of service upon respondent.  Consequently, petitioner’s reply has not been considered.

Public Officers Law §§89 and 107 vest exclusive jurisdiction over complaints alleging violations of FOIL and the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Application of Berman, 46 id. 378, Decision No. 15,537).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal, Application of Gentile, 47 Ed Dept Rep 438, Decision No. 15,747.   Nor do I have jurisdiction to adjudicate any allegations relating to possible violations of the Open Meetings Law.

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).

Petitioner alleges that respondent initiated an appeal to the Commissioner without school board approval, namely the Application to reopen the Appeal of Rocco N. Lanzilotta, 48 Ed Dept Rep 450, Decision No. 15,911.  That application was served on April 8, 2009 and petitioner states that he was aware of the application in early April.  Given that the instant appeal was commenced on May 20, 2009, more than 30 days after the action complained of, and petitioner provides no excuse for the delay, this claim is untimely and must be dismissed. 

Petitioner’s claims regarding certain consulting services are also untimely.  The petition was served on May 20, 2009, more than 30 days after respondent had knowledge of the alleged unauthorized action and also more than 30 days after he obtained advice from the district’s attorney regarding his concerns. Petitioner provides no excuse for the delay in initiating the appeal.  Accordingly, petitioner’s claim concerning respondent’s approval of these consulting services must also be dismissed as untimely.    

A member of a board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer 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 Commissioner of Education (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). 

Petitioner alleges that respondent misled or failed to inform the board regarding a tax lien and possible foreclosure on certain church-owned property, which was the subject of litigation.  Petitioner provides no evidence that respondent took any action, authorized or otherwise, with respect to the litigation or tax lien.  Nor has petitioner demonstrated that respondent prevented the board from receiving information regarding the status of the litigation or lien.  Indeed, respondent submits several status memos to the board from its attorney regarding the matter and petitioner presents no countervailing evidence. 

Petitioner also claims that respondent misled him regarding her attempts to secure space for district prekindergarten classes.  He alleges in a conclusory fashion that respondent gave him a list of 12 houses of worship that she represented she contacted for available space.  Petitioner asserts that, in fact, respondent failed to contact at least two of them.  Respondent denies these assertions.  Petitioner does not provide any documentary evidence to establish either the lack of contact or any wilful violation or neglect of duty.  Petitioner, therefore, has failed to meet his burden of proof and his claims must be dismissed.   

Respondent has 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 respondent 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 respondent is entitled to receive a certificate of good faith. 

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