Appeal of DAVID GATES, SHELLEY BRAZLEY, WILLIAM A. WATSON, PATRICIA SPLEEN, LESLIE MCSHINE, and CHERYL WYCHE from actions of the Board of Education of the Hempstead Union Free School District and board trustees Maribel Touré, Gwendolyn Jackson and Melissa Figueroa regarding a contract with a consultant, and application for the removal of Maribel Touré and Gwendolyn Jackson as board trustees.

Decision No. 17,188

(September 19, 2017)

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

ELIA, Commissioner.--Petitioners appeal from certain actions of the Board of Education of the Hempstead Union Free School District (“board”) and board trustees Maribel Touré (“Touré”), Gwendolyn Jackson (“Jackson”) and Melissa Figueroa (“Figueroa”) (collectively “respondents”) regarding a contract with a consultant.  Petitioners also seek the removal of Touré and Jackson from their positions as board trustees.  The appeal must be dismissed and the application must be denied.

Petitioners are residents and taxpayers of the district.  The petition contains over 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 appears to be the board’s contract with a consultant, Barbara J. Smith, the owner of Barbara J. Smith Advisory Services, LLC (“Consultant”).  On March 22, 2017, the district’s audit committee, of which respondent Jackson was the chairperson, recommended that the board hire an external auditor to assist the district in coming into compliance with applicable State requirements by implementing proper budgetary development and monitoring procedures.  The record indicates that the audit committee recommended that the board hire the Consultant based on her unique qualifications and experience.  By board resolution dated March 28, 2017, respondent board resolved to hire the Consultant to provide financial consulting services to the district’s business office.  This application and appeal ensued.  Petitioners’ request for interim relief, in which they sought to restrain the board from enforcing the resolution passed by the board to hire the Consultant, was denied on April 26, 2017.

Petitioners contend that Touré, Figueroa, and Jackson acted in violation of Education Law §1613 when soliciting and engaging the services of the Consultant without competitive bidding; that the audit committee violated Education Law §2116-c by recommending the hiring of the Consultant; and that the vote of Touré, Figueroa, and Jackson to pass a resolution to “suspend the District policy that requires the Superintendent’s recommendation for the BOE to hire a consultant” and the hiring of the Consultant encroached upon the exclusive authority of the superintendent, in violation of Education Law §1711.  Petitioners further contend that such misconduct constitutes an abuse of power, a willful violation of laws and neglect of duty within the meaning of §306 of the Education Law, warranting the removal of board president Touré and trustee Jackson.

Respondents assert that the application is untimely, petitioners lack standing to bring this appeal, and it must be dismissed for failure to state a claim upon which relief may be granted.  Respondents further argue that petitioners fail to show a willful violation of law or neglect of duty; board trustees acted appropriately and within the scope of their duties; board trustees acted within the scope of their authority and did not infringe on the authority of the interim superintendent; and that the board complied, in all respects, with applicable laws, policies, and regulations regarding the hiring, retention, and supervision of employees and consultants.

I must first address the procedural issues.  Petitioners attempt to submit a “Reply to Respondents’ Opposition to Application for a Stay” dated April 19, 2017.  I note that there is no authority in the Commissioner’s regulations for a “reply” to papers opposing a stay request (8 NYCRR §275.3; Appeal of McAvey, 56 Ed Dept Rep, Decision No. 16,978; Appeal of DeLouise, 49 id. 384, Decision No. 16,058; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  I will not consider this as in the nature of a reply to respondents’ answer because respondents had not yet served their answer - and indeed, were not required to serve their answer until May 30, 2017 – and their answer does not reference their papers in opposition to petitioners’ stay request (cf. Appeal of Lim, 55 Ed Dept Rep, Decision No. 16,868).

Respondents assert that claims in the petition relating to matters that occurred more than 30 days prior to the commencement of this action are time-barred.  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 allege to be a pattern of misconduct on the part of trustees Touré and Jackson, the petition details several events that occurred between September 2016 and January 2017.  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 and appeal was served upon respondents on April 3, 2017, which is less than 30 days after both the audit committee’s recommendation on March 22, 2017 and respondents’ action on March 28, 2017 approving the hiring of the Consultant.  It therefore is timely with respect to those alleged violations.

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 the request for relief, petitioners seek a stay of respondents’ action taken at the special meeting on March 28, 2017.  Petitioners’ request for a stay was denied on April 26, 2017.  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 must be dismissed as moot.

Turning to petitioners’ removal application, 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., 48 id. 348, Decision No. 15,882).  On this record, petitioners have failed to establish facts sufficient to warrant the removal of Jackson and Touré.[1]

In the contract at issue in this case, the board sought the professional skills and knowledge of the Consultant, a former audit manager with an accounting firm and former Chief Financial and Operating Officer for the City School District of the City of Buffalo, to provide training, assistance, and mentoring to the district’s business official relating to the budget development, fiscal monitoring, and reporting.  Because the contract to retain the Consultant concerns the provision of professional services, it is not subject to the sealed competitive bidding requirements of General Municipal Law §103 (Giustino v. County of Nassau, et al., 306 AD2d 376; Matter of Schulz v. Warren County Board of Supervisors, 179 AD2d 118 [3rd Dept, 1992] leave to appeal denied 80 NY2d 754; Matter of Ascher, 12 Ed Dept Rep 223, Decision No. 8,619).  Consequently, entering into a contract for professional services without competitive bidding does not violate Education Law §1619.[2]  In any event, because professional services contracts are outside the scope of competitive bidding, they need not be awarded to the lowest bidder provided that the award is in the best interest of the taxpayers (see General Municipal Law §104-b; Matter of Omni Recycling of Westbury, Inc. v. Town of Oyster Bay, 11 NY3d 868; Goldwin-Kent, Inc. v. County of Broome, 107 Misc2d 722; Matter of Mathalia Motors, Inc. v. City of Oneida, 105 Misc2d 843, aff’d 84 AD2d 637).

General Municipal law §104-b requires a board to adopt policies and procedures to govern the procurement of goods and services not subject to competitive bidding and further requires that such procedures contain, among other things, a requirement that proposals “be secured by use of written requests for proposals, written quotations, verbal quotations, or any other method of procurement which furthers the purposes of the section” (General Municipal Law §104-b[2][b]).  In accordance with that provision of General Municipal Law, board policy 6741 sets forth the process for securing professional services, including the preparation of a request for proposals (“RFP”).  To the extent that petitioners allege a violation of this policy as the basis for the removal of Touré and Jackson, it is well settled that, even if proven, violation of a board’s bylaws or policies, by itself, is not a sufficient basis for removal of a member of a board of education in a proceeding pursuant to Education Law §306 (Application of Simmons, 53 Ed Dept Rep, Decision No. 16,596; Application of Malgieri, et al., 52 id., Decision No. 16,482; Application of Vogel, 46 id. 481, Decision No. 15,570).  However, a violation of board policy may be used as evidence of willfulness of such conduct.  School district officers can only be removed under §306 when they engage in a "wilful violation or neglect of duty."  This means that there must be "a purpose or intent to disregard a lawful duty or to violate a legal requirement" (Application of Ciffone, et al., 35 Ed Dept Rep 243, Decision No. 13,529; Application of Kozak, 34 id. 501, Decision No. 13,396; Matter of Felicio, et al., 19 id. 414, Decision No. 10,190).  Mere negligence on the part of a school officer is not enough to warrant removal (Appeal of Schofield, 34 Ed Dept Rep 143, Decision No. 13,263).

In this case, the acts about which petitioners complain do not rise to the level of willful misconduct and, thus, on the record before me, petitioners have failed to demonstrate that respondents engaged in a “wilful violation or neglect of duty.”  While respondents did not follow the process set forth in board policy 6741, the record indicates that they followed the process set forth in board policy 2280, which provides for the hiring of consultants to the board.  Although it appears that the board followed the wrong policy in this instance, petitioners have failed to show any purpose or intent by respondents to disregard board policy 6741.  Moreover, even assuming, arguendo, that respondents violated board policy, I note that their actions would not necessarily violate General Municipal Law §104-b, as they did obtain a written quotation for services from the Consultant, which is an option under General Municipal Law §104-b(2)(b).  The statute does not require a request for proposals but rather explicitly provides for alternative means of soliciting bids, including submission of a written quotation or verbal quotations.  The process followed by respondent board in making the procurement substantially furthered the purpose of General Municipal Law §104-b.  Respondent board tasked the audit committee with recommending a consultant.  In respondent’s district, the audit committee includes persons other than board members to provide accounting and auditing expertise (see Education Law §2116-c[2]).  Indeed, the audit committee’s minutes, submitted with the petition, note that other professionals and/or firms were contacted but were unavailable at the time; the Consultant submitted a written proposal in response to the audit committee’s request; and, on this record, there is no evidence of any favoritism, improvidence, extravagance, fraud, or corruption in the hiring of the Consultant.  Further, other than conclusory statements regarding the qualifications and cost of the Consultant, who was recommended to the district, petitioners provide no evidence that the retention of the Consultant was not in the best interest of the taxpayers.  Therefore, on this record, I cannot find that respondents’ conduct rises to the level of willful violation of law or neglect of duty; at best, respondents were negligent in acting in violation of board policy.  Based upon the record before me, I cannot find that respondents’ actions in this regard warrant their removal.

Petitioners also claim that Touré, Figueroa, and Jackson violated Education Law §1711 by voting to suspend that portion of board policy 2280 which requires the recommendation of the superintendent with respect to consultants and by retaining the Consultant, because such actions encroached upon the statutory duties reserved to the superintendent and that such violation warrants the removal of Touré and Jackson.  The record indicates that at its March 16, 2017 meeting, the board voted to suspend a portion of board policy 2280 “for the purpose of permitting the Board to hire a consultant in the absence of a recommendation from the Superintendent.”  The record further indicates that the board did so pursuant to board policy 2430, which authorizes the suspension of policies and regulations of the board “for a specific purpose and limited time by a majority vote of all members of the board” and states that the board “should thoroughly discuss the reasons for suspension and find suspension absolutely necessary.”  Other than their conclusory assertions that the board’s action in this regard encroached upon the superintendent’s statutory duties and “usurp[ed his] authority,” petitioners do not allege or provide any evidence indicating that respondents acted in violation of board policy 2430 or any law.  On this record, therefore, I find that petitioners have failed to carry their burden with respect to this claim.

A board of education has broad powers pursuant to Education Law §1709(13) and (33) concerning the superintendence, management, and control of a school district.  Respondents state that the Consultant was engaged to assist the district’s staff in the review and correction of the 2016-2017 budget and creation of the 2017-2018 budget.  Respondents contend that the hiring of the Consultant was within the authority of the board under Education Law §1709(33) and, on this record, petitioners have failed to show otherwise.  Petitioners mischaracterize the Consultant’s contract as involving supervision of district employees in derogation of the superintendent of schools’ authority under Education Law §1711(2)(e) to “have supervision and direction” of district employees.  However, it appears from the record that the Consultant’s role is advisory – providing training and mentoring, but not supervision.  Petitioners have not established that retention of a consultant by a board of education to serve in such an advisory capacity violates Education Law §1711(2) by encroaching upon the superintendent’s authority over school district employees.  Petitioners have therefore not carried their burden of proof in this regard.

Petitioners also claim that respondent Jackson violated Education Law §2116-c by using the audit committee, of which she was the chairperson, to make a recommendation to hire the Consultant, and that such violation warrants her removal.  Education Law §2116-c requires every school district, with limited exception, to establish an audit committee to oversee and report to the board on the annual audit of the district (see Education Law §2116-c[1]).  The duties of such committee are set forth in the statute and include providing recommendations regarding the appointment of an external auditor (see Education Law §2116-c[5][a]).  Petitioners contend that Education Law §2116-c limits the authority of the audit committee to matters relating to the conduct of the internal and external auditor and the reports issued by them.

Respondents deny that the hiring of the Consultant was in violation of either provision and maintain that the services to be provided by the Consultant were those of an external auditor, in compliance with Education Law §2116-c.  Petitioners submit the summary of the Consultant’s proposal from the audit committee, a copy of the Consultant’s proposal, and the board resolution dated March 28, 2017 hiring the Consultant, all of which indicate a scope of work that includes assistance and oversight of the budgetary process, a form of external audit that would appear to be consistent with Education Law §2116-c.  Even if that were not the case, Education Law §2116-c prescribes the functions that an audit committee must carry out, but does not include language prohibiting an audit committee from carrying out other related functions for the board of education.  Therefore, based upon the record before me, I cannot find that respondent Jackson’s actions were improper or in any way warrant her removal.

I have reviewed the remaining allegations set forth by petitioners in support of their application for removing Touré and Jackson from office and do not find that the evidence supports a finding that they willfully violated the law or neglected their duty, the standard that must be met for removing a board member from office (Appeal of Andrews, 31 Ed Dept Rep 453, Decision No. 12,697; Appeal of Young, 24 id. 313, Decision No. 11,405).

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

Although I am constrained to deny this application for removal and dismiss this appeal, I admonish respondent board to fully comply with the procedures established in all applicable board policies in the future.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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