Appeal of THOMAS CORBIA from action of the Board of Education of the Port Chester-Rye Union Free School District regarding his removal from office.

Decision No. 18,092

(February 28, 2022)

Law Office of Mario DeMarco, PC, attorneys for petitioner, Mario DeMarco, Esq., of counsel

Ingerman Smith, L.L.P. attorneys for respondent, Gus Mountanos and Kristen Marotta, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Port Chester-Rye Union Free School District (“respondent” or the “board”) to remove him as a board member on the ground of official misconduct.  The appeal must be dismissed.

Petitioner was elected to the board in June 2020 to serve a three-year term.  In September 2020, two posts appeared on a social media account (Facebook) belonging to petitioner.  The first, which was posted by another individual but “shared” by petitioner, referenced “illegal immigrants.”  The second, which petitioner commented on in approval, made reference to a “white privilege card.”

Respondent held a board meeting on September 17, 2020, during which petitioner spoke, unprompted, stating:

... Two people ... alerted me last night to a Facebook post that was attributed to m[e] ... I didn’t know what they were talking about, so they sent them to me.  I looked at it and it wasn’t mine, so I assumed I was hacked as one of them had thought, because they didn’t believe it was mine ...

I just want the public to know that post wasn’t originated by me, and it wasn’t forwarded or commented [on] by me.  I have been hacked no less than three times since the summer began.  One of it was corrected immediately; thought we had it done.  Then it was hacked into the internet, and hacked again, I guess, sometime in late August or early September ....

I apologize if it offended anybody ... that was not, you know, from me, and we’ll leave it at that ...

Later in the meeting, the board discussed what action would be appropriate to address petitioner’s claim that he was “hacked.”  Board member Anne Capeci proposed that the matter be referred to the board’s ethics committee.  In response, petitioner stated:  “I have total agreement with Mrs. Capeci. Regarding, to bring forward to the ethics committee; I think that’s a great way to go, ... to show our transparency.”

On September 18, 2020, the superintendent emailed the board and board counsel, confirming that he had referred the matter to the board’s ethics committee.[1]  The superintendent charged the committee with investigating petitioner’s claim that his social media account was hacked, indicating that the investigation “need[ed] to be completed as soon as possible.”

On September 22, 2020, the board voted to retain an investigative firm “to conduct an investigation related to [petitioner’s] assertion [that] he was ‘hacked’ in regard to the two (2) above-referenced posts.”  The board also engaged special counsel, effective October 1, 2020, to conduct a “confidential investigation” concerning petitioner’s conduct.

The ethics committee made exhaustive attempts to secure cooperation from petitioner over the next few weeks.  These efforts were repeatedly rebuffed, as described below:

• September 25: committee member Larry Lupo contacted petitioner, who stated that he would “consult with his attorney” and get back to him.
• September 29: Mr. Lupo contacted petitioner’s attorney and left a message.
• September 30: Mr. Lupo spoke with petitioner’s attorney, who indicated he would call back by the end of the day.  He failed to do so.
• October 1: Mr. Lupo spoke with petitioner’s attorney, who indicated that his client would be unavailable “for a few weeks” because “he [wa]s booked.”
• October 1 through 5: the investigative firm left multiple messages for petitioner’s attorney, who did not respond.
• October 7: an investigator spoke with petitioner’s attorney.  The parties discussed “the parameters of the investigation.”  Petitioner’s attorney did not commit to a date for the interview.
• October 8: special counsel spoke with petitioner’s attorney.  Both parties agreed that “complet[ing] the investigation as quickly as possible ... [wa]s in everyone’s best interests.”  Special counsel provided several dates when the parties could meet to conduct a “forensic examination” of petitioner’s personal cellphone.  Petitioner’s attorney committed to choosing one of the dates by the next day. 
• October 9: petitioner’s attorney deferred his selection of an interview date, stating: “[N]ext week for me is impossible, so it will have to be the following week.  Let’s talk Tuesday [October 13, 2020] ....”
• October 12, 13, and 14: respondent contacted petitioner’s attorney, who did not respond.
• October 15: petitioner’s attorney wrote to special counsel: “I am on trial today.  I will get back to you tomorrow.”
• October 16: after receiving no response, special counsel emailed petitioner’s attorney, stating, in part: “I once again called and left a message ... I am deeply troubled by what I now believe to be your intentional efforts to ... delay this investigation.  Moreover, I deem your lack of any meaningful response to our ongoing efforts to merely secure dates ... to be a concerted attempt ... to impede the [d]istrict’s ability to properly investigate this matter.”
• October 19: petitioner’s attorney replied, indicating that “[t]hings have been rather hectic here.”  The attorney asserted that: “[t]his investigation will happen on a timeline that I am comfortable with, not one merely driven by you.”  Petitioner’s attorney offered a tentative commitment to November 9, 2020.  The attorneys also spoke by phone that same day.  Special counsel replied by email to confirm the substance of the conversation.  He relayed two comments made by petitioner’s attorney: (1) that he was “trying to slow down this investigation” and (2) did not care “if ‘they’ want to move the investigation forward; this will move on my timeline not theirs.”
• October 27: petitioner’s attorney wrote: “[p]lease be advised that this office no longer represents Mr. Corbia.  My understanding is that he will be retaining other counsel who will be in contact with you.”
• October 28: Mr. Lupo spoke directly with petitioner, who agreed to meet with the ethics committee on November 4.
• November 4: petitioner met with the committee for approximately an hour and 15 minutes.  Petitioner confirmed that the only device by which he accesses social media is his personal cellphone.  He declined to turn over the phone for investigation, stating:  “Over my dead body will I share this phone with anyone.  I don’t even share this phone with my wife.”  Petitioner also responded “no comment” when asked whether he would meet with the investigative firm.

The ethics committee issued a final report on November 11, 2020.  The committee indicated that it had investigated two issues:  (1) whether petitioner “was responsible for commenting upon and/or forwarding the [social media] posts”; and (2) whether petitioner “was hacked as he alleged at the [b]oard meeting.”  In its report, the committee issued detailed findings explaining how petitioner’s claim  that his cellphone was hacked was “dubious.”  The ethics committee reasoned that petitioner offered no proof and that his statements presented “glaring inconsistences.”  The committee further found that “Mr. Corbia and/or his attorney ... deliberately tr[ied] to prevent the [c]ommittee from rendering any conclusive findings in connection with this matter.”  The committee concluded that petitioner’s “refusal to cooperate” left it “unable fulfill [its] charge from the board.”

Board counsel emailed a copy of the ethics committee report to petitioner on November 15, 2020.  She indicated that the report was “a [b]oard document” and clarified that “there ha[d] been no decision made as to whether the [b]oard [would] release the report ....”  The record reflects that petitioner forwarded a copy of this report to his (current) attorney the following day, prior to any waiver of confidentiality by the board.[2]

On February 8, 2021, the board appointed a hearing officer to convene a removal proceeding seeking petitioner’s removal.

In a statement of charges dated February 8, 2021, respondent charged petitioner with five counts of official misconduct and sought his removal from office.  These counts centered on two acts of misconduct:  (1) refusing to participate in, and actively thwarting, respondent’s investigation; and (2) disclosing confidential information in the form of the unredacted ethics committee report.

Respondent convened a hearing on March 18, 19, and 22, 2021. It called the superintendent and a member of the investigative firm as witnesses.  Petitioner did not attend the hearing and indicated, through counsel, that he was waiving his right to testify.  Counsel for petitioner did not introduce any evidence or testimony.

In a decision dated March 26, 2021, the hearing officer sustained all charges against petitioner and recommended his removal from office.  Initially, he found the superintendent and investigator to be credible witnesses.  On the merits, the hearing officer found that respondent met its burden of establishing, among other facts, that petitioner “willfully, intentionally, and wrongfully impeded an investigation directed and authorized by the Board of Education[,] which ... was instituted as a consequence of [petitioner’s] public statements.”  The hearing officer recommended petitioner’s removal.

On April 14, 2021, respondent adopted the findings and recommendations of the hearing officer, removing petitioner from his position, effective April 15, 2021.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 4, 2021.

Petitioner contends that his social media postings were protected by the First Amendment and could not serve as grounds for his removal.  Petitioner further alleges that he had “no obligation whatsoever to provide evidence against himself” by cooperating with respondent’s investigation or providing his personal cellphone for analysis.  Petitioner additionally argues that he did not disclose confidential information by forwarding the ethics committee report to his attorney.  Petitioner requests a determination that his removal was arbitrary and capricious.

Respondent contends that its determination is supported by the evidence adduced at the hearing.  Respondent argues that the hearing officer, who rendered credibility determinations adverse to petitioner, considered and rejected the same arguments that he presents on appeal.

Pursuant to Education Law § 1709 (18), a board of education has the power “[t]o remove any member of their board for official misconduct.”   The “official misconduct” must clearly relate to a board member’s official duties, either because of the alleged unauthorized exercise of the member’s powers or the intentional failure to exercise those powers to the detriment of the school district (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785; Appeal of Cox, 27 id. 353, Decision No. 11,973).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

I hereby affirm respondent’s determination on the charge that petitioner failed to cooperate with, and thwarted the aims of, its investigation.  The evidence adduced at the hearing reveals that, after the social media comments at issue came to light, petitioner publicly agreed to cooperate with an investigation while privately obstructing respondent’s attempts thereto.  I agree with the hearing officer’s analysis of this course of action, which he characterized as “willfully, intentionally, and wrongfully imped[ing] an investigation directed and authorized by the Board of Education ....”  Petitioner does not appeal this finding, nor does he allege that his previous attorney acted unilaterally in attempting to impede or delay the investigation.  Accordingly, I find that petitioner intentionally exercised his powers to the detriment of the school district (Appeals of Gill and Burnett, 42 Ed Dept Rep 89, Decision No. 14,785). 

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

THE APPEAL IS DISMISSED.

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