Application of LISA LIEBERMAN for the removal of Phillip DeGaetano as president and trustee of the Board of Education of the Clarkstown Central School District.

Application of JOSEPH MALGIERI, DIANE HOENEVELD and LISA LIEBERMAN for the removal of Phillip DeGaetano as president and trustee of the Board of Education of the Clarkstown Central School District.

Decision No. 16,483

(May 17, 2013)

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

KING, JR., Commissioner.--In two separate applications, petitioners ¹   seek the removal of Phillip DeGaetano (“respondent”) from his position as president and trustee of the Board of Education of the Clarkstown Central School District (“board”). Because the applications present similar issues of fact and law, they are consolidated for decision. The applications must be denied.

In her removal application, petitioner Lieberman claims that respondent - then board president – violated the former superintendent’s contract by failing to direct the board to complete the superintendent’s annual review in June 2010, as allegedly required by said contract.

According to the record, on February 8, 2011, the board provided the former superintendent with an evaluation that covered the time period from September 1, 2009 -December 31, 2010. Petitioner Lieberman asserts that respondent acted improperly because the evaluation: was untimely, covered an inappropriate time period, improperly included her name on it and contained unsubstantiated criticism and unfounded accusations against the former superintendent. Petitioner Lieberman also claims that respondent engaged in misconduct by evaluating the former superintendent both publicly and on the basis of criteria that were not approved by the board.

In their joint removal application, petitioners Malgieri, Hoeneveld and Lieberman allege that on numerous occasions from July 1, 2009 through June 30, 2010, respondent conducted business and made statements on behalf of the board without authorization. Specifically, petitioners assert that respondent, inter alia, without board authorization, made critical evaluative statements about the job performance of the former superintendent and other staff to the public and/or media. Petitioners claim that these statements also violated the former superintendent’s contract. Petitioners further assert that respondent improperly announced plans to terminate or deny tenure to district staff and to eliminate specific positions from the budget.

All petitioners claim that, by the alleged conduct set forth above, respondent violated various district bylaws and policies, as well as Public Officers Law §74. Additionally, although not entirely clear, it appears that petitioners Malgieri, Hoeneveld and Lieberman assert that respondent violated the Open Meetings Law.

Respondent contends that the applications are untimely, moot and fail to state claims upon which relief may be granted.

Respondent further maintains that petitioner Lieberman lacks standing to institute a removal application based upon alleged violations of the former superintendent’s employment contract and that, irrespective of petitioner Lieberman’s lack of standing, the contract did not require an annual evaluation. Respondent also alleges that, nevertheless, the evaluation presented on February 8, 2011 was completed by the full board and, therefore, respondent, as an individual board member, is not solely responsible for any delay in completing it.

Respondent claims that, inter alia, the allegedly inappropriate comments attributed to him constitute his personal opinion regarding board issues and that he did not suggest or imply that he was speaking on behalf of the board.

Respondent further contends that alleged violations of board bylaws and policies do not constitute grounds for removal and that all of his actions were taken in good faith and based on the advice of counsel. Finally, respondent requests a certificate of good faith pursuant to Education Law §3811.

I will first address several procedural issues. 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-daylimitation 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).

In both applications, all of respondent’s actions which petitioners assert warrant removal took place outside the required 30 day period. Indeed, petitioner Lieberman’s application was commenced more than six months late, and petitioners Malgieri, Hoeneveld and Lieberman commenced their application more than a year after the last act of alleged misconduct. Petitioners acknowledge that the irrespective applications are untimely.

Although the Commissioner has the discretion to excuse a failure to commence an appeal within the time period specified for good cause shown, Commissioner’s regulation§275.16 requires that the “reasons for such failure shall be set forth in the petition.” Here, while petitioners acknowledge their delay in commencing these applications, they advance no explanation therefor. Therefore, they are dismissed as untimely.

Petitioners’ applications for respondent’s removal as member of the board are 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 respondent’s term of office expired on June 30, 2012 and that he was not re-elected for another term. The applications for his removal, therefore, are academic.

Even if the applications were not dismissed on procedural grounds, they would be dismissed on the merits. A member of the board of education or a school officer maybe 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 respondent’s 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 petitioner relies on an alleged violation of Public Officers Law §74, that statutory provision does not apply to school district officers oremployees.

Moreover, on this record, petitioners have failed to establish facts sufficient to warrant the removal of respondent. The actions of which petitioners complain do not rise to the level of wilful violation or neglect of duty under the Education Law. Petitioners have also failed to articulate any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education that respondent has wilfully disobeyed.

Finally, to the extent that petitioners’ joint removal application can be construed as asserting an Open Meetings Law claim against respondent, 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 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 any Open Meetings Law allegations raised in these applications.

One final matter remains. Respondent requests that Issue a certificate of good faith pursuant to Education Law§3811(1). Such certification is solely for the purpose of authorizing the board to indemnify him for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as aboard trustee. It is appropriate to issue such certification unless it is established on the record that the requesting board member or trustee 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 respondent acted in bad faith, respondent is entitled to a certificate of good faith.

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

THE APPLICATIONS ARE DENIED.

END OF FILE

 

^[1]   Petitioner Lisa Lieberman was a board member until June 30, 2010. Petitioners Joseph Malgieri and Diane Hoeneveld currently are, and atall times relevant to these applications were, board members.