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Decision No. 16,613

Application of STUART E. ANDERSON for the removal of Richard Downey as a member of the Board of Education of the Otego-Unadilla Central School District.

Decision No. 16,613

(June 20, 2014)

Coughlin & Gerhart, LLP, attorneys for respondent, Michael G. Surowka, Esq., of counsel

KING, JR., Commissioner.--Petitioner seeks the removal of Richard Downey (“respondent”) from the Board of Education of the Otego-Unadilla Central School District (“board”). The application must be denied.

In his application, petitioner asserts that respondent must be removed because he allegedly organized and arranged a meeting to be held at the district’s high school on November 13, 2012 by the Unatego Area Landowners Association (“UALA”), an organization to which respondent Downey belongs. UALA promotes natural gas development in the area. Petitioner alleges that public attendance at this meeting was prohibited in violation of Education Law §414(1)(c). Specifically, petitioner alleges that the correspondence announcing the meeting states, “All those who support gas development are welcome” and “ALL COALITIONS AND PRO-DRILLING LANDOWNERS ARE INVITED.” Petitioner claims that such statements are “intended to discourage by intimidation attendance at the advertised meeting by (a) persons not favoring gas drilling, and/or (b) persons who are not landowners; such persons are clearly implied to not be invited.”

Petitioner seeks Downey’s removal from the board based on the above described alleged violations of law. He also requests that I prohibit Downey from serving by election or appointment until “such time as all of the current members have been re-elected or replaced” and that I bar UALA from the use of all school facilities for a period of five years. Finally he asks that I “refuse to issue a certificate of good faith if requested on the respondent’s behalf ....”

Respondent asserts that the application should be denied for, among other things, failure to state a claim upon which relief may be granted and failure to join a necessary party. Respondent further contends that, to the extent the petition asserts claims under the Open Meetings Law (Public Officers Law, Article 7), such claims are not within my jurisdiction.

Initially I note that, although respondent correctly asserts that the Commissioner of Education lacks jurisdiction to entertain claims brought pursuant to the Open Meetings Law, petitioner does not assert any such claims in his petition that require adjudication.

Respondent’s contention that the application must be denied for failure to join a necessary party is also without merit. 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).

In his application, petitioner alleges that Kim More, another UALA member, allegedly acting on respondent Downey’s behalf, prohibited petitioner from videotaping the UALA meeting and informed petitioner that he must pay UALA dues to become a member or else leave the meeting. Respondent contends that petitioner failed to join More as a respondent in this proceeding, warranting dismissal. However, petitioner seeks no relief against More and a determination in petitioner’s favor would not affect More’s rights. Therefore, More is not a necessary party to this proceeding (see, Appeal of Wallace, 52 Ed Dept Rep, Decision No. 16,479; Appeal of G.H.L., 46 id. 571, Decision No. 15,598) and I will not dismiss it for failure to join her as a respondent.

Nevertheless, the application must be denied on the merits. Petitioner has failed to establish facts sufficient to warrant the removal of respondent pursuant to Education Law §306. 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). To be considered willful, respondent’s actions must have been intentional and with a wrongful purpose. 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 fails to establish that respondent Downey has engaged in willful or intentional misconduct warranting his removal from office. It appears from the record that although respondent had a role in setting up the UALA meeting in his capacity as a UALA member, he was not acting in his official capacity as a school board member nor was any school board business discussed at the UALA meeting. In addition, petitioner has failed to demonstrate that the UALA meeting arranged by respondent was exclusive and not open to the general public, in violation of Education Law §414(1)(c). I note that the record contains no evidence that respondent prohibited petitioner, or anyone else, from attending the UALA meeting. Indeed, in his reply, petitioner states that he “has made no issues of whether there were other non-members at the meeting or not,” focusing on his own alleged ejection from the meeting. Nor has petitioner proved that respondent acted in collusion with any other UALA member to prohibit petitioner from videotaping the UALA meeting or ejecting petitioner from the meeting. Having established no willful violation of Education Law §414 by respondent, I find no basis for his removal as board member.

To the extent that petitioner requests that I prohibit respondent from serving on the board by election or appointment until all current members have been elected or replaced, petitioner sets forth no basis for such relief, particularly in light of the dismissal of his removal application. Similarly, he fails to establish any basis for his request that I bar UALA from the use of all school facilities for a period of five years. Moreover, the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

With respect to petitioner’s request that I reprimand respondent, there is no provision in the Education Law authorizing censure or reprimand of a board member or district staff by the Commissioner of Education (Appeal of C.Z., 52 Ed Dept Rep, Decision No. 16,450; Appeal of Oglesby, 51 id., Decision No. 16,311). In any event, as set forth above, the record does not establish any violation of the Education Law by respondent.

One final matter remains. Petitioner asks that I refuse to 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). Although not specifically requested by respondent, in light of petitioner’s request for denial, I must note that where, as here, 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 consider the parties’ remaining contentions.