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Decision No. 16,482

Application of JOSEPH MALGIERI, DIANE HOENEVELD and ROBERT CARLUCCI for the removal of Phillip DeGaetano and Douglas Katz as trustees of the Board of Education of the Clarkstown Central School District.

Decision No. 16,482

(May 17, 2013)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondents, Neelanjan Choudhury, Esq., of counsel

KING, JR., Commissioner.--Petitioners Joseph Malgieri,Diane Hoeneveld and Robert Carlucci 1   seek the removal of Phillip DeGaetano and Douglas Katz (“respondents”) from their positions as trustees of the Board of Education of the Clarkstown Central School District (“board”). The application must be denied.

The application is based upon alleged written and verbal offers made in January and March 2011 to “buy out” the superintendent’s contract. Petitioners claim that respondents DeGaetano and Katz – then president and vice-president of the board – directed that such offers be made, without obtaining board authorization. Specifically, petitioners contend that, inter alia, in January 2011,respondents instructed the district’s general counsel to make an offer to “buy out” the superintendent’s contract. Petitioners claim that this unauthorized offer was memorialized in a January 2011 letter from the district’s general counsel to the then-superintendent’s counsel. Petitioners allege that this letter was “presumably known” to respondents before it was sent.

Petitioners further contend that, on March 11, 2011,at respondents’ behest and absent board authorization, the district’s special labor counsel made another offer, via telephone, to “buy out” the then-superintendent’s contract. Petitioners claim that later that same day, an emergency executive session of the board was convened to discuss the possibility of offering to “buy out” the superintendent’s contract. Petitioners assert that at no time during this meeting were the board members in attendance informed that a contract “buy out” offer had already been made.

Petitioners maintain that respondents’ alleged unauthorized actions violated various district bylaws and policies, as well as Public Officers Law §74, warranting their removal from office as board members. Additionally, although not entirely clear, petitioners appear to assert that respondents violated the Open Meetings Law.

Respondents allege that the appeal is untimely, moot and that petitioners have failed to demonstrate that they engaged in conduct warranting their removal from the board. Respondents further contend that a violation of board policy does not constitute grounds for removal. Respondents assert that they relied on the advice of counsel in scheduling and attending a March 11, 2011 “attorney-client” meeting of the board for the purpose of privileged discussions with counsel. Finally, respondents request certificates of good faith pursuant to Education Law §3811.

I will first address several procedural matters. 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). 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.

With respect to the issue of timeliness, 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).

All of petitioners’ claims arise out of respondents’ alleged misconduct occurring in January and March 2011.However, petitioners’ application was not commenced until October 24, 2011, approximately seven months later. Petitioners acknowledge in their application that the January and March 2011 actions took place more than 30 days prior to this application. However, they claim that their delay should be excused because they did not become aware of the January 2011 letter proposing a contract “buy out” until September 26, 2011, when they saw it among correspondence they were reviewing at the district’s general counsel’s office.

Respondents deny the existence of the letter and submit an affirmation by the district’s general counsel that he wrote no letters during January through March 2011offering to “buy out” the superintendent’s contract. Respondents both deny having seen or authorized such a letter. Petitioners have not produced a copy of the letter, asserting they were not permitted to copy or photograph it. To explain their delay, petitioners rely on the alleged January 2011 letter as their means of “discovering” in September 2011 respondents’ alleged earlier misconduct. Absent proof of such letter, I find no basis to exercise my discretion and excuse the late filing of this application, and it is, therefore, untimely.

Petitioners’ application for respondents’ removal as members of the board is also moot. 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No.15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937;Appeal of Embro, 48 id. 204, Decision No. 15,836). The record indicates that each respondent’s term of office expired on June 30, 2012. Therefore, respondents are no longer board members, and the application for their removal is academic.

Even if the application was not dismissed on procedural grounds, it would be dismissed on the merits. A member of the 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., 48id. 348, Decision No. 15,882).

To the extent that petitioners contend that respondents’ conduct violated various district bylaws and policies, a violation of a board bylaw or policy, by itself, is not a basis for removing a board member from office pursuant to Education Law §306 (Application of Vogel, 46 Ed Dept Rep 481, Decision No. 15,570; Application of Michalski, 33 id. 505, Decision No. 13,130; Application of Cox, 27 id. 124, Decision No. 11,892).

To the extent that petitioners rely on an alleged violation of Public Officers Law §74, that statutory provision does not apply to school district officers or employees.

Moreover, on this record, petitioners have failed to establish facts sufficient to warrant respondents’ removal. Petitioners submit no credible evidence that respondents instructed the district’s general counsel and/or special labor counsel to make an offer to the then-superintendent’s counsel to “buy out” her contract, with or without board authorization. Additionally, petitioners assert only “upon information and belief” that respondents acted to “conduct business and make statements” without board authorization. Further, petitioners merely speculate that the alleged January 2011 contract “buy out” offer letter was “presumably known” to respondents. Respondents aver that they neither saw nor authorized the January 2011 letter and did not authorize any “buy out” offer without board approval. Affirmations by the district’s general counsel and/or special labor counsel corroborate respondents’ assertions. Consequently, petitioners have failed to sustain their burden on this issue. Petitioners have also failed to articulate any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education that respondents have wilfully disobeyed. Thus, on this record, there is no basis to support petitioners’ removal request.

Finally, to the extent that petitioners’ applicationcan be construed as asserting an Open Meetings Law claim against respondents, such claim must be dismissed. 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 DeptRep 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 any Open Meetings Law allegations raised in this application.

One final matter remains. Respondents request that Iissue certificates of good faith pursuant to Education Law§3811(1). Such certification is solely for the purpose of authorizing the board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out ofthe exercise of their powers or performance of duties as board trustees. It is appropriate to issue such certification unless it is established on the record that the requesting board members or trustees acted in bad faith(Application of Berman, 46 Ed Dept Rep 378, Decision No.15,537; Application of Mazile, 45 id. 378, Decision No.15,356). In view of this decision, and the fact that there has been no finding that respondents acted in bad faith, respondents are entitled to a certificate of good faith.

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




[1]   Petitioners currently are, and at all times relevant to this application were, board members.