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Decision No. 17,380

Application of WILLIAM KING MOSS III for the removal of Maria Gonzalez-Prescod as a member of the Board of Education of the Brentwood Union Free School District.

Decision No. 17,380

(April 27, 2018)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Candace J. Gomez, Esq., of Counsel

ELIA, Commissioner.--Petitioner seeks the removal of Maria Gonzalez-Prescod (“respondent”) as a member of the Board of Education of the Brentwood Union Free School District (the “board”).  The application must be denied.

Prior to the events described in this application, respondent’s spouse, who owns and operates an engineering/architectural company, provided services to the Brentwood Historical Society (“historical society”).  The historical society has, for several years, attempted to renovate a structure located on the property of respondent’s district called the Modern Times School House (the “school house”).  Since 2016, respondent’s spouse has assisted the historical society in its efforts to renovate the school house free of charge.

The record indicates that, in or about January 2016, the board applied for a State and Municipal Facilities Grant (“SAM grant”) for the school house.  The board was awarded $50,000 on the condition that it raised approximately $21,000 in matching funds.  The historical society provided the $21,000 in matching funds to the district, which set the funds aside.  For reasons which are not revealed in the record, the board did not receive the $50,000 SAM grant funds.

Sometime in 2017, respondent’s spouse offered to provide engineering and architectural services to the board at below market cost to prevent the school house from collapsing.  Specifically, respondent’s spouse offered to provide restoration services for $8,500, which the board president represents is below the market value for such services.  The record indicates that the board intended to accept respondent’s spouse’s proposal at a meeting held on July 6, 2017.

Sometime prior to July 6, 2017, respondent, who was elected as a board member on May 17, 2014 but had not yet been sworn into office, disclosed to the board president and other board members that her spouse was the owner of the engineering/architectural company.

At the July 6, 2017 board meeting, respondent was sworn into office.  The board also adopted a resolution accepting the bid of respondent’s spouse to provide historic preservation services for the school house.  This resolution provided that $8,500 would be paid to respondent’s spouse’s company from the $21,000 received from the historical society.  Respondent recused herself from the vote on this resolution.

After this vote, the board conferred with counsel and determined that it should not have accepted the bid of respondent’s spouse because the $21,000 it received belonged to the historical society, and any contract for restoration services should have been between respondent’s spouse’s company and the historical society.  Additionally, the board determined that respondent should have informed all members of the board of her conflict of interest and disclosed such in writing.

On August 17, 2017, at the board’s next regularly-scheduled meeting, the board rescinded the July 6, 2017 resolution which had accepted the bid of respondent’s spouse.  The board also authorized the district to release the funds received from the historical society to renovate the school house.  This application ensued.  Petitioner’s request for interim relief was denied on January 19, 2018.

Petitioner contends that respondent had an impermissible conflict of interest because she held a position on the board while her spouse’s company successfully bid on a contract with the board.  Petitioner further contends that respondent wilfully failed to disclose her conflict of interest in writing as required by the General Municipal Law.  Petitioner also asserts that the board’s August 17, 2017 resolution authorizing the return of the $21,000 to the historical society constituted an impermissible “gift of public funds” to the historical society “so that it, in turn, could pay” respondent’s spouse’s company.  Petitioner seeks respondent’s removal from office as well as an “[i]njunction or [r]evocation of the August 17, 2017 resolution gifting public funds to the Brentwood Historical Society.” 

Respondent contends that the application must be dismissed for lack of proper notice, lack of proper service and for failure to provide the requisite filing fee.  Respondent also asserts that the application is subject to dismissal as untimely and moot.  Respondent further argues that petitioner has neither alleged nor proven that respondent committed a wilful violation of the Education Law or any other act pertaining to common schools.

As a preliminary matter, to the extent petitioner seeks to present claims against the board pursuant to Education Law §310, such claims must be dismissed for failure to join the board as a necessary party.  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Here, petitioner has neither served the board with a copy of the instant application nor named it in the caption.  Therefore, to the extent petitioner seeks to present claims against the board, such claims are dismissed for failure to join the board as a necessary party (see e.g. Application of Dickinson, 50 Ed Dept Rep, Decision No. 16,223).

Respondent argues that the application must be denied for lack of proper notice and service.  These objections appear to pertain to an initial version of the application served by petitioner which lacked both the notice required by 8 NYCRR §277.1 and an affidavit of personal service as required by 8 NYCRR §§275.8 and 275.9.  In a letter dated December 18, 2017, my Office of Counsel acknowledged receipt of this initial, defective application and returned it to petitioner.  Thereafter, petitioner served the instant application, which contains the requisite notice and affidavit of personal service.  Therefore, I will not dismiss the application on these bases.

However, the application must be dismissed 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).

Here, petitioner’s removal application is based on acts or omissions which occurred on July 6, 2017 and August 17, 2017.  However, the application was not served until January 12, 2018, well over four months after August 17, 2017.

Petitioner nevertheless contends that he only discovered respondent’s failure to file a written conflict of interest statement on November 16, 2017 when the board president “made it public” that respondent had not provided written notice of a “potential conflict of interest” regarding her spouse’s company.  Specifically, petitioner asserts that, on November 16, 2017, the board president “admitted that no written notice of the ... conflict of interest was ever presented to the board.”  Although, as noted above, an application for removal may be timely commenced within 30 days of a petitioner’s good faith discovery of the alleged conduct, petitioner has not established that the challenged conduct was not publicly available information or could not have been discovered prior to November 2017 (see e.g. Appeal of Goldin, 43 Ed Dept Rep 220, Decision No. 15,009).  Indeed, the record reflects that respondent’s alleged conflict of interest was publicly discussed at a board meeting on October 19, 2017.   Specifically, at that meeting, a member of the public asked if respondent’s spouse’s company was affiliated with anyone in the district or on the board.  Respondent responded by saying: “actually, that’s my husband’s company.  They’ve been working for the last year with the historical society....”  The written disclosure requirement in General Municipal Law §803(1) is entirely dependent upon the existence of an actual or prospective conflict of interest, and such actual or prospective conflict was discussed in a public session of the board on October 19, 2017.  Therefore, petitioner’s claim regarding respondent’s failure to file a written disclosure accrued, at the latest, on October 19, 2017, and his service of the instant application on January 12, 2018 was untimely.

However, even assuming, arguendo, that petitioner discovered the facts giving rise to this application on November 16, 2017, the last day for service of a timely application would have been December 18, 2017.  Petitioner has offered no excuse for his failure to commence this proceeding within 30 days after alleges he learned of such facts (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,287).  Thus, petitioner’s service of the instant application on January 12, 2018 would still be untimely.

In his reply, petitioner suggests that respondent had a continuing obligation to file a written disclosure in connection with the contract between her spouse’s company and the board.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action that results in a continuous violation of the law, 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 discrete action, inaction or decision and the resulting effects are continuing but 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.]).  As noted above, the board rescinded the July 6, 2017 resolution from which the actual or potential contract arose on August 17, 2017.  Thus, even assuming, arguendo, that an actual conflict existed and constituted a continuing wrong, any such conflict was extinguished on August 17, 2017.  Petitioner cites no authority suggesting that respondent remained obligated to file a written disclosure thereafter.

In light of this disposition, I need not address the parties’ remaining contentions.  However, I note that while respondent admits that she should have identified her actual or potential conflict of interest in writing as required by General Municipal Law §803(1), there is no indication that respondent’s failure to do so was in this instance was wilful.  The record reflects that respondent voluntarily disclosed her actual or potential conflict to multiple board members and recused herself from the July 6, 2017 resolution.  Nevertheless, I remind respondent to conform her conduct to the requirements of the General Municipal Law, including its conflict of interest provisions.

One administrative matter remains.  Respondent requests that I grant her a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify her 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 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).  Here, because the application has been denied on procedural grounds, I hereby certify for the purpose of Education Law §3811(1) that respondent is entitled to receive the requested certificate (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Application of Wallace, 52 id., Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265).