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Decision No. 16,594


 Application of CARL P. PALADINO for the removal of Dr. Barbara Seals Nevergold as President and Member-at-Large of the Board of Education of the City School District of the City of Buffalo.

Decision No. 16,594

(March 12, 2014)

Hodgson Russ, LLP, attorneys for respondent, Karl W. Kristoff, Esq., of counsel

KING, JR., Commissioner.--Petitioner seeks the removal of Dr. Barbara Seals Nevergold (“respondent”) as President and Member-at-Large of the Board of Education of the City School District of the City of Buffalo (“board”). The application must be denied.

Petitioner, a member of the board, asserts that respondent should be removed from her position as president and member of the board pursuant to Education Law §306 for allegedly neglecting her duties and wilfully violating the law “on various dates between July 2013 and September 2013.” Specifically, petitioner claims that respondent violated board policies concerning the conduct of board meetings and the supervision, management, and implementation of district business, including staffing, contractual matters, and legal obligations. Petitioner also claims that respondent violated the Open Meetings Law (“OML”) and breached her fiduciary duties to the district.

Respondent claims that the application should be denied because the petition contains a fatal jurisdictional defect; the application is untimely; the allegations in the application lack merit; the application fails to establish that respondent acted intentionally and with a wrongful purpose; and certain of petitioner’s claims are moot. Respondent also argues that petitioner is attempting to adjudicate alleged OML violations in an inappropriate forum. Respondent requests that a certification of good faith be issued pursuant to Education Law §3811.

I must first address several procedural issues. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which 2


notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I also note that the late filing of memoranda of law may be permitted by the Commissioner, in his sole discretion, upon written application setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the appeal (8 NYCRR §276.4[a]). Neither the cover letter dated December 26, 2013, nor the enclosed documents contain a request for permission to file the affidavit or late memorandum of law in accordance with the regulations. Therefore, I have not considered these documents.

I also note that neither the affidavit nor the memorandum of law relate to the claims originally raised in this application. While respondent does not appear to object to petitioner’s submission of the photocopied documents as part of the instant application for removal, it is unclear from the record whether petitioner intended to serve the materials on respondent as part of the instant application (Appeal No. 19889) or as part of a separate proceeding by petitioner seeking respondent’s removal on different grounds (Appeal No. 19894). Indeed, although the photocopied materials received by my Office of Counsel on January 13, 2014 include the docket number for the instant application (Appeal No. 19889), the originals of these documents, which were received by my Office of Counsel on December 30, 2013, were filed as part of Appeal No. 19894. I have reviewed the documents and find that they are not relevant to the allegations and claims raised in the instant application and, for this additional reason, I have not considered them.

Respondent claims that the application should be denied because the notice of petition is fatally defective. Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office (8 NYCRR §277.1[b]). 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. It is well 3


settled that a notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent (see Application of Wolpin, 52 Ed Dept Rep, Decision No. 16,489; Application of Kroniser, 52 id., Decision No. 16,469; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050). 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 (Application of Kroniser, 52 Ed Dept Rep, Decision No. 16,469; Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253). For this reason, the application for removal must be denied.

The application must also be denied as untimely. 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). In this case, the application was served on November 6, 2013. However, petitioner acknowledges that “the actual conduct occurred on various dates between July 2013 and September 2013.” The application was commenced more than 30 days after September 25, 2013, which is the last date of wrongful conduct alleged in the application. While petitioner appears to assert that his delay should be excused because he “wanted to give an opportunity for Respondent to resign in light of” his allegations, I cannot conclude that petitioner has established good cause for his delay (see Appeals of Simpson, et al., 40 Ed Dept Rep 5, Decision No. 14,402; Appeal of Decker, 39 id. 62, Decision No. 14,173). Moreover, the record indicates that petitioner was present at each of the meetings at which the 4


conduct complained of allegedly occurred. Petitioner does not allege and has not established that he was unable in good faith to discover the facts underlying the claims raised in the instant application until the 30-day period prior to commencing this application (see Application of Gentile, 47 Ed Dept Rep 438, Decision No. 15,747; Application of Leman and Sluys, 39 id. 330, Decision No. 14,252). The application is therefore untimely.

While it is not entirely clear, petitioner appears to argue that the appeal is timely because respondent’s conduct constitutes a continuing wrong. The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901). The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]). 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). Generally, petitioner challenges specific, single actions and inactions of respondent that are discrete events and has not established that the results of such actions and inactions are intrinsically unlawful. Accordingly, the continuing wrong doctrine does not apply to such actions and inactions (see e.g. Application of Lupiani, 36 Ed Dept Rep 355, Decision No. 13,747). With respect to petitioner’s claim that respondent neglected her fiduciary duty and violated Education Law §2554(2) by “allowing the appointment of a number of senior staff at 5


significant salaries and without approval of the Board,” respondent asserts in her verified answer that the board “adopted a curative resolution concerning” the issues raised by petitioner in this regard. As noted above, petitioner has submitted no reply or other evidence to refute this assertion and has therefore failed to carry his burden of establishing that such action or inaction constitutes a continuing wrong.

Although the application must be denied on procedural grounds, one administrative matter remains. Respondent has requested that I 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 respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of her powers or performance of duties as a board member. It is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Application of Schenk, 47 id. 375, Decision No. 15,729; Application of Lilly, 47 id. 307, Decision No. 15,705; Application of Berman, 46 id. 378, Decision No. 15,537). In view of the fact that the application here is denied on procedural grounds and there has been no finding that respondent acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that respondent appears to have acted in good faith (Application of Wallace, 52 Ed Dept Rep, Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265).

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