Decision No. 18,116
Appeal of TERRY WILLIAMS from action of the Board of Education of the Greenburgh Central School District regarding his removal from office.
Decision No. 18,116
(May 2, 2022)
Ruskin Moscou Faltischek, P.C., attorneys for respondent, Mark S. Mulholland, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals from the decision of the Board of Education of the Greenburgh Central School District (“respondent” or “board”) to remove him from office. The appeal must be dismissed.
Petitioner served as a trustee of the board from July 2002 until he was removed on June 29, 2021. On March 25, 2021, the board brought five charges against petitioner for official misconduct pursuant to Education Law § 1709 (18). The charges alleged: (1) unauthorized exercise of power by deliberately obstructing the board’s recruitment of a superintendent; (2) disclosure of confidential information from executive session; (3) disclosure of a student’s personally identifiable information; (4) a pattern and practice of attacking board colleagues and disrupting board meetings; and (5) violations of the code of conduct and rules for board members. A hearing commenced before a duly appointed hearing officer on April 27, 2021 and concluded on May 17, 2021. Petitioner was not reelected to his seat during the annual school board election that took place on May 18, 2021.
On June 22, 2021, the hearing officer issued a report sustaining all five charges against petitioner and recommending his removal from the board. On June 29, 2021, respondent voted by a margin of 5-1-1 (i.e., five in favor, one opposed, and one abstention) to adopt the hearing officer’s recommendations and remove petitioner from office. This appeal ensued.
Petitioner argues that respondent failed to supply “any evidence” in support of the charges against him during the hearing. Petitioner also claims that the hearing officer ignored the evidence he presented during the hearing. Accordingly, petitioner asks that respondent’s decision be reversed and that he be reinstated to his seat on the board as of June 29, 2021.
Respondent argues that petitioner’s appeal is moot. Respondent also argues that the board’s determination was supported by the evidence adduced at the hearing.
First, I must address a procedural matter. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 ). Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522). The parties agree that petitioner’s term of office expired on June 30, 2021. Therefore, insofar as petitioner seeks reinstatement to his prior seat on the board, the appeal must be dismissed as moot (Appeal of Jones-White, 44 Ed Dept Rep 347, Decision No. 15,194).
However, to the extent that petitioner seeks to reverse the board’s decision to remove him from office, relief may still be afforded. Education Law § 2103 (2) states that “[a] person removed from a school district office shall be ineligible to appointment or election to any district office for a period of one year from the date of such removal.” I find that petitioner remains aggrieved by virtue of his present ineligibility to appointment or election (compare Appeal of Friedman, 33 Ed Dept Rep 292, Decision No. 13,052).
Turning to the merits, 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 Corbia, 61 Ed Dept Rep, Decision No. 18,092; Appeal of Johnson, 57 id., Decision No. 17,263; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785).
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).
Upon review of the hearing record, I find that respondent presented sufficient evidence to support petitioner’s removal based on charge four, engagement in a pattern and practice of attacking board colleagues and disrupting board operations. The hearing officer found that the evidence established “a pattern of knowing and intentional displays of antagonistic, provocative, inappropriate, and disrespectful conduct by [petitioner] over the course of several years as a member of the [b]oard.” The hearing officer also found that “such behaviors ... interfered with and compromised the [b]oard’s effectiveness and ability to function.”
These findings are supported by the hearing record. With respect to petitioner’s comments and conduct, the record demonstrates that petitioner frequently, and over the course of several years, made inappropriate and derogatory comments toward fellow board members during board meetings, sometimes accompanied by threats of violence. For example, petitioner referred to another board member as a “loser” and a “cry baby”; invited another board member “out to the parking lot” to settle a disagreement; told another board member that he was “going to back [his] car over [him]” following a disagreement about a board decision; and threw his briefcase across the room – an act that “scared several … community members.” Many of these incidents occurred during public board meetings. One board member specifically testified that multiple constituents contacted him to complain about petitioner’s behavior, stating it made them feel hurt and offended.
The hearing record also supports the hearing officer’s determination that petitioner’s conduct “interfered with and compromised the [b]oard’s ... ability to function.” Multiple board members testified that petitioner’s practice of cursing, verbally abusing and demeaning colleagues, and monopolizing board meetings made it “impossible” for the board to carry out its functions. Testimony further established that petitioner’s behavior disrupted “most” board meetings. One board member withdrew from serving on a committee with petitioner because of his behavior. Another board member testified that there were many times when he refrained from speaking on a topic because the board meeting had lasted until 1:00 a.m. due to petitioner’s obstructionist conduct. It is well established that such disruption constitutes official misconduct (Appeals of Gill and Burnett, 42 Ed Dept Rep 89, Decision No. 14,785 [upholding board’s removal of trustee where his “pattern of inappropriate, antagonistic and offensive conduct ... ha[d] a detrimental impact upon [the] board’s ability to carry out its responsibilities”]; Appeals of Hoefer, 45 id. 66, Decision No. 15,263 [removal upheld for “unauthorized, inappropriate, antagonistic, offensive, and demeaning” conduct that “interfered with and compromised the board’s effectiveness and ability to function”]; Appeal of Kozak, 34 id. 501, Decision No. 13,396 [removing a board member who “breached his duty to engage in constructive discussion to make policy for the district, and in fact, interfered with the ability of the board to function” by engaging in actions that were “highly unprofessional an unbecoming [of] a school board ... member”]).
Petitioner’s only “defense,” which the hearing officer appropriately rejected, was that other board members have behaved poorly, too. Even assuming that other board members cursed or failed to raise their hands during virtual board meetings, each “board member has a duty to proceed with constructive discussions aimed at achieving the best possible governance of the school district” (Application of Gabryel, 44 Ed Dept Rep 235, Decision No. 15,158, citing Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050 and Appeal of Kozak, 34 id. 501, Decision No. 13,396). This duty is not contingent upon, or subject to, the good behavior of others. Thus, the hearing officer properly rejected petitioner’s argument.
Petitioner’s conduct is emblematic of the incivility that has roiled school communities as of late. His colleagues, district staff, and the students and families deserve better. As I wrote in February 2022,
Amidst the struggles and difficulties of the pandemic, we cannot lose sight of the fact that our children are watching and learning from our behavior. For the sake of generations to come, we must all look inward, reflect on our own actions, and ask ourselves whether we are setting the example we want our children to follow.
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner’s suggestion that the hearing officer was biased because she and respondent’s attorney are alumni of the same law school is without merit and need not be addressed herein.
 The hearing officer sustained charge four in its entirety except for the facts alleged in paragraph 13, which referred to an alleged threat petitioner made against another board member in 2015.
 As such, this case is distinguishable from prior decisions of the Commissioner where, in the context of an application for removal under Education Law § 306, an “isolated remark” was deemed insufficient to justify removal (e.g., Application of Lyons-Birsner and Birsner, 57 Ed Dept Rep, Decision No. 17,160; Application of the Bd. of Educ. of the Lawrence Union Free Sch. Dist., 39 id. 523, Decision No. 14,299; Application of O’Mara, 37 id. 122, Decision No. 13,819).
 In any event, the record supports the hearing officer’s finding that there was no evidence that any other board member “engaged in conduct of the same kind and extent attributed to [petitioner].”
 Statement from Commissioner Betty A. Rosa, New York State Education Department, Feb. 1, 2022, available at http://www.nysed.gov/news/2022/statement-commissioner-betty-rosa (last accessed Apr. 19, 2022).