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Decision No. 16,338

Appeal of ELIAS STEVEN GOOTZEIT from actions of the Board of Education of the City School District of the City of Mount Vernon and John Harold Gross, Esq., in his representative capacity as partner in the firm Ingerman Smith L.L.P., regarding board practices.

Decision No. 16,338

(March 29, 2012)

Ingerman Smith, L.L.P., attorneys for respondents, Neil M. Block, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges various actions of the Board of Education of the City School District of the City of Mount Vernon ("respondent board” or “the board”) and John Harold Gross, Esq., as partner in the law firm of Ingerman Smith, L.L.P., relating to board practices.  The appeal must be dismissed.

Petitioner, a board trustee, challenges various actions that took place at the board’s July 6, 2011 meeting. 

Petitioner alleges that respondent board violated the district’s bylaws by making modifications to consent agenda items at the July 6 board meeting that were not prepared by the superintendent in consultation with the board president.  Petitioner further alleges that respondent board hired Ingerman Smith, L.L.P. (“Ingerman”) and JMS Financial Services (“JMS”) in violation of Education Law §2513 and General Municipal Law §103 and that the board refused to permit questioning or discussion on the choice of Ingerman and JMS at the July meeting.  Petitioner asks that I nullify respondent board’s determination to hire Ingerman and JMS and direct respondents to reinstate the management system in place prior to the July 6, 2011 vote.  Petitioner also alleges that respondent Gross and Ingerman violated DR 5-105 and DR 5-109 of the New York Lawyer’s Code of Professional Responsibility by meeting with members of respondent board prior to being formally retained by the board.

Respondent board asserts that petitioner has not demonstrated that the district violated its bylaws, that its retention of Ingerman and JMS was in all respects proper, and that John Gross and Ingerman did not engage in conduct which would disqualify them from providing legal services to the district.

First, I must address a procedural matter.  To the extent that petitioner requests that I nullify respondent’s determination to hire JMS, I must dismiss this claim for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Since JMS is not named in the caption and there is no evidence that it has been served, this claim must be dismissed.

Turning to the merits, 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 has failed to demonstrate that the district violated its bylaws in the preparation of the consent agenda that was presented at the July 6, 2011 meeting.  The district’s bylaws provide in pertinent part:

To make more efficient use of meeting [time], the Board of Education authorizes the use of a consent agenda as part of its regular meeting agenda.

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The consent agenda will be prepared by the Superintendent of Schools in consultation with the President and/or the Vice President of the Board.

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Individual items on a consent agenda will not be discussed prior to action.  However, if any Board member believes that any item on the consent agenda requires discussion, that Board member may request that the item be removed from the consent agenda, and the item shall be removed.  The removed item shall then move to the regular agenda. 

Petitioner acknowledges that on June 22, 2011, he received the consent agenda for the July 6 reorganization meeting that was prepared by the superintendent in consultation with the outgoing board president.  It is undisputed that some of the consent agenda items were modified before the July 6 meeting.  Petitioner alleges that the modifications were not prepared by the superintendent, in violation of the district’s bylaws. 

The record reflects that tab 15 (the appointment of Ingerman) was removed from the consent agenda at petitioner’s request.  Tabs 15 and 16 (appointment of JMS), and tabs 17 and 18 were also removed from the consent agenda at another trustee’s request.  These items were then discussed and voted on at the meeting.  In its verified answer, respondent board also asserts that each trustee was permitted to cast a vote on each item on the consent agenda, thus rendering the entire consent agenda a regular agenda.  Petitioner submits no evidence to refute this assertion.  Therefore, I find that the items about which petitioner complains were no longer on the consent agenda and that petitioner has failed to demonstrate that respondent did not follow its bylaws in approving these items.

I find no merit to petitioner’s claim that the district violated Education Law §2513 by failing to send the Ingerman contract out for competitive bidding.  Because the contract concerns the provision of professional services, it is not subject to the competitive bidding requirements of General Municipal Law §103 (Matter of Schultz v. Warren County Bd. of Supervisors, 179 AD2d 118, 123, lvdenied, 80 NY2d 754; Hurd v. Erie County, 34 AD2d 289, 292-93; seee.g.People ex rel. Smith v. Flagg, 17 NY 584; Appeal of Enviroscience Consultants Inc., 47 Ed Dept Rep 269, Decision No. 15,693).  However, respondent was required to follow General Municipal Law §104-b, which requires a contracting party to adopt written internal policies and procedures to govern the procurement of goods and services not required to be competitively bid.

The record reveals that the district had written procedures in place for the selection of a school attorney and petitioner presents no evidence that the evaluation process, either on its face or as implemented, was arbitrary, capricious or improper.  Respondent’s bylaws established criteria for the selection of a school attorney, including the cost, the special knowledge or expertise of the lawyer/law firm; the quality of the service provided by the lawyer/law firm and the lawyer/law firm’s suitability for the district’s needs.  Petitioner has not presented any evidence that these criteria were not considered and/or that proper procedures were not followed. 

In sum, petitioner has failed to demonstrate that respondent violated the General Municipal Law, its own policies, or acted in an arbitrary or capricious manner in awarding the contract to Ingerman.

To the extent petitioner’s allegations include Open Meetings Law violations, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of 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 McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Finally, I must dismiss petitioner’s claims that John Gross and/or Ingerman Smith, LLP violated certain provisions of the New York Lawyer’s Code of Professional Responsibility.  An appeal under §310 of the Education Law is not the proper forum for challenging such issues.  Therefore, these claims must also be dismissed.

In light of the foregoing, I need not address petitioner’s remaining contentions.