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Decision No. 17,164

Application of DAVID GATES, SHELLEY BRAZLEY, WILLIAM A. WATSON, PATRICIA SPLEEN, LESLIE MCSHINE, and CHERYL WYCHE for the removal of board trustees Melissa Figueroa, Maribel Touré, and Gwendolyn Jackson and appeal from the actions of the Board of Education of the Hempstead Union Free School District.

Decision No. 17,164

(August 28, 2017)

Sokoloff Stern LLP, attorneys for respondents, Brian S. Sokoloff and Melissa L. Holtzer, Esqs., of counsel

ELIA, Commissioner.--Petitioners seek the removal of Maribel Touré (“Touré”), Melissa Figueroa (“Figueroa”), and Gwendolyn Jackson (“Jackson”) (collectively “respondents”) from their positions as president and trustees, respectively, of the Board of Education of the Hempstead Union Free School District (“board”).  Petitioners further appeal from the actions of the board regarding the interviewing of candidates for the position of superintendent of schools.  The application must be denied and the appeal dismissed.

Petitioners are residents and taxpayers of the district.  The petition contains almost 100 paragraphs describing the contentious relationship among the board trustees and alleging various acts of misconduct, abuse of power and abuse of public office.  The gravamen of petitioners’ complaint and the basis for the removal application is a meeting that petitioners allege to have occurred among Touré, Figueroa, and Jackson on April 4, 2017.  On April 3, 2017, petitioners sought an ex parte temporary restraining order (“TRO”) in Supreme Court, Nassau County, to enjoin Touré, Figueroa, and Jackson from holding a meeting of the board at the offices of the district’s labor attorney, located outside the district’s geographic boundaries, as such meeting allegedly would be in violation of the Open Meetings Law.  The record indicates that the TRO was granted.  Petitioners assert that Touré, Figueroa, and Jackson proceeded to hold the April 4th meeting, in violation of the court-ordered TRO and the Open Meetings Law.  This proceeding ensued.  Petitioners’ request for interim relief, in which they sought to restrain the board from taking any actions relating to the interviewing and hiring of a new superintendent of schools pending the outcome of this application and appeal, was denied on June 14, 2017.

Petitioners contend that Touré, Figueroa, and Jackson acted in violation of the Open Meetings Law and in violation of a court order and that such misconduct constitutes an abuse of power, a wilful violation of the law, and neglect of duty within the meaning of §306 of the Education Law, warranting their removal.  Petitioners seek the removal of Touré, Jackson, and Figueroa as board trustees.  “In the alternative,” petitioners seek removal of Touré as board president for the remainder of the 2016-2017 school year.

Respondents assert that the application is untimely, the interim relief requested is moot, petitioners lack standing to bring this application, and it must be dismissed for failure to state a claim upon which relief may be granted.  Respondents assert that the alleged meeting involved an executive session held to interview candidates for the position of superintendent of schools.  They assert that the meeting was initially delayed, but upon being advised by their attorney that the TRO had not been lifted, the meeting was not held and no interviews were conducted.  Respondents further argue that petitioners fail to show a wilful violation of law or neglect of duty; board trustees acted appropriately and in the best interests of the district; board trustees acted within the scope of their authority; and that the board complied, in all respects, with applicable laws, policies, and regulations relating to the scheduling and public notification of board of education meetings.

I must first address the procedural issues.  Respondents assert that some of petitioners’ allegations are 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).  As evidence of what the petitioners refer to as a pattern of misconduct on the part of Touré, Figueroa, and Jackson, the application details instances of alleged violations of the Open Meetings Law occurring well over 30 days prior to the initiation of this application.  Petitioners do not contend that they were unaware of such events until recently, or that their discovery of the same was delayed.  To the extent that petitioners attempt to use such events as the basis for this removal application, the application is untimely as it was not initiated until April 2017.  However, the application was served upon respondents on April 28, 2017, which is less than 30 days after respondents’ alleged violation of the court-ordered TRO and the Open Meetings Law on April 4, 2017.  It therefore is timely with respect to those alleged violations of law.

Turning to the issue of standing, petitioners are district residents and thus have standing to bring a removal proceeding against their elected officials pursuant to Education Law §306 (Application of Wilson, 41 Ed Dept Rep 196, Decision No. 14,663; Application of Eisenkraft, 38 id. 553, Decision No. 14,092).  Therefore, I will not dismiss the application for lack of standing.

In their request for relief, petitioners seek a stay to restrain the board from taking any acts or actions in furtherance of those acts from which they appeal, all of which related to the interviewing of candidates, deliberations by the board for the selection of a candidate, and possibly the imminent making of an offer of employment to any candidate for the position of superintendent of schools.  Petitioners’ request for a stay was denied on June 14, 2017.  The appeal must be dismissed as 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).  Because petitioners seek no other relief with respect to the board's actions in this regard beyond the stay request, that portion of petitioners’ appeal is moot.  Similarly, the 2016-2017 school year has ended and petitioners’ request that Touré be removed as board president for the remainder of that school year is also moot.

Turning now to 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).

The application must be dismissed for lack of jurisdiction.  Petitioners allege that respondents violated the Open Meetings Law and a TRO issued in a proceeding in State supreme court alleging violations of the Open Meetings Law.  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 Open Meetings Law allegations raised in an application pursuant to Education Law §306 (Bd of Educ. of the City School Dist. of the City of Elmira, 49 Ed Dept Rep 363, Decision No. 16,051; Application of T.D., 41 id. 157, Decision No. 14,646; Appeal of Fontana, 39 id. 515, Decision No. 14,297; Application of Goldin, 39 id. 14, Decision No. 14,158). 

It is well-established that 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).  On this record, I cannot find that a proper basis for removal has been proven based on the alleged violation of the ex parte TRO.  The TRO involves claims under the Open Meetings Law over which I do not have jurisdiction and is, by its nature, a temporary non-final order (see CPLR §6313[a]) that is enforceable through the court’s civil contempt power pursuant to Judiciary Law §753(A)(3) (see McCain v. Dinkins, 84 NY2d 216).[1]  In any case, the record before me indicates that no meeting was held in violation of the TRO.  Under these circumstances, and in the interest of promoting judicial economy, the application must be denied.

In light of this disposition, I need not address the remaining contentions raised in this application and appeal.




[1] The record indicates that, on or about April 13, 2017, petitioners Gates, Brazely, Spleen, McShine, and Wyche obtained from Supreme Court, Nassau County a second order to show cause against respondents Touré, Figueroa, and Jackson seeking a finding of contempt for alleged violation of the TRO.  The record is unclear as to the status of any such contempt proceedings.