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Decision No. 16,265

Application of LARRY D. WORNUM for the removal of Leslie Davis as a member of the Board of Education of the Westbury Union Free School District.

Decision No. 16265

(July 22, 2011)

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

KING, JR., Commissioner.--Petitioner seeks the removal of Leslie Davis (“respondent”) as a member of the Board of Education of the Westbury Union Free School District.  The application must be denied.

Petitioner, a district resident, alleges, in conclusory fashion, that respondent cast the “deciding vote” to extend the superintendent’s contract and, thereafter, certain district maintenance staff were observed performing landscaping duties at respondent’s home with district equipment.  He asserts that this may constitute a violation of her oath of office and the conflict of interest provisions of the General Municipal Law.

Respondent contends that the superintendent’s contract was extended by a 4 to 3 vote and that hers was merely one of the four majority votes.  She also maintains that she personally hired and paid Michael DiNuzzo, a member of the district’s maintenance staff, for work done by his own part-time landscaping company.  She asserts that there is no connection between the two actions and that no impropriety occurred.  Respondent submits DiNuzzo’s affidavit in support of her assertions.

In an application to remove a school officer pursuant to Education Law §306, Commissioner’s regulation §277.1(b) requires that the notice of petition must specifically advise the respondent that the application is being made for respondent’s removal from office.  In this case, petitioner failed to comply with §277.1(b) and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which does not contain the language required by the Commissioner’s regulations is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Rosten, 49 Ed Dept Rep 237, Decision No. 16,014; Application of Barton, 48 id. 189, Decision No. 15,832).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660; Application of Mazile, 45 id. 378, Decision No. 15,356; Application of Hamilton, 45 id. 367, Decision No. 15,352).

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 Kushner, 49 Ed Dept Rep 263, Decision No. 16,020; Appeal of Lilly, 47 id. 268, Decision No. 15,692; Application of Berman, 46 id. 378, Decision No. 15,537).  Since there has been no such finding, I find that respondent is entitled to receive a certificate of good faith.