Decision No. 18,189
Appeal of JOHN EISENHAUER from action of the Board of Education of the City School District of the City of Watertown regarding an intermunicipal agreement for the collection of taxes.
Application of JOHN EISENHAUER for the removal of Maria Mesires as president and member, Culley Gosier, Jason Harrington, and Suzanne Renzi-Falge as members of the Board of Education of the City School District of the City of Watertown.
Decision No. 18,189
(August 23, 2022)
Ferrara Fiorenza, PC, attorneys for respondent Watertown City School District, Heather M. Cole, Esq., of counsel
Slye Law Offices, P.C., attorney for City of Watertown, Robert J. Slye, Esq., of counsel
ROSA., Commissioner.--Petitioner challenges a determination of the Board of Education of the City School District of the City of Watertown (“respondent” or the “board”) to authorize the execution of an agreement with the City of Watertown (the “City”) regarding the collection of taxes. In a separate application, petitioner seeks the removal of the board president and three members of the board of education related to the same agreement. Because the petitions present common questions of fact and law, they are consolidated for decision (8 NYCRR 275.18). The appeal must be sustained in part and the application must be denied.
On June 15, 2021, respondent approved an intermunicipal agreement (“the agreement”) with the City for the collection of school taxes. The City approved the agreement six days later. In the agreement, the City agreed to provide tax collection services for respondent for the 2021-22 and 2022-23 school years. This appeal and application ensued. Petitioner’s request for interim relief was denied on July 14, 2021.
Petitioner contends that the agreement is unenforceable as written because it does not: (1) cite the statutory authority for its creation; (2) make specific reference to the City’s responsibility to file an undertaking; and (3) require remittance of taxes within five days. Petitioner requests a determination that the agreement is unlawful; he also seeks the removal of the board president and three members of the board for their role in connection therewith.
Respondent argues that the agreement complies with the General Municipal Law and the Education Law. Respondent asserts that, even assuming that the agreement contains an error, the contract specifically contemplates amendments; some of petitioner’s claims are premature or moot; and petitioner otherwise fails to state a claim. With further respect to petitioner’s removal application, respondent contends that all the members of the board performed their duties and responsibilities in good faith when they voted to approve the agreement.
The City argues that I lack jurisdiction over it and that the petition must be dismissed in its entirety.
First, I must address two preliminary matters. Petitioner submitted replies in connection with both his appeal and application. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). The replies assert new claims against respondent that were not contained in either petition. Therefore, while I have reviewed the replies, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. Consequently, it is unnecessary to consider respondents’ sur-reply (Appeal of Puskuldjian, 61 Ed Dept Rep, Decision No. 18,079; Appeal of Murphy, 61 id., Decision No. 18,018; Appeal of Pulizzi, et al., 57 id., Decision No. 17,249).
With respect to the City’s jurisdictional arguments, a person or entity whose rights would be adversely affected by a determination 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). I agree with petitioner that the City is a necessary party to this appeal, as its rights—including its anticipated compensation—would be affected were the contract annulled (see generally Jerusalem Ave. Taxpayer, LLC v Liberty Mut. Ins. Co., 137 AD3d 600, 600-01 [1st Dept 2016]). I further find that I have jurisdiction over the City to evaluate whether the agreement complies with Education Law § 2506. The City affirmatively subjected itself to jurisdiction in an Education Law § 310 appeal by contracting with respondent, a public school district. Indeed, the agreement itself contemplates, in its severability clause, that it could be “adjudged invalid by ... the Commissioner of Education ....” Therefore, the City is properly before me as a party to the section 310 appeal.
Turning to the merits, 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).
First, petitioner objects to the fact that, in the agreement, respondent cited its general authority to enter into municipal cooperation (General Municipal Law Article 5-G) instead of its more specific authority, as a small city school district, to assign tax collection to a city (Education Law § 2506). I agree with respondent that both laws served as a basis for the agreement; I further agree that there is no requirement “to reference the legal authority for the agreement within [the] agreement itself.” But even assuming that the citation to the General Municipal Law constituted a technical omission or error, it would not warrant annulment of the agreement.
Petitioner’s argument that the agreement improperly elides the city’s obligation to file an undertaking is similarly without merit. Education Law §§ 2506 and 2527 require the City, as tax collector, to “execute to the school district and file with the school district clerk an official undertaking in such sum and with such corporate surety as the board of education shall direct and approve” (Education Law § 2527). However, as with the above argument, there is no requirement that this obligation be identified in an intermunicipal agreement itself. Education Law § 2506 (2) (a) explicitly indicates which terms must be included in such an agreement; for example, how much money the City will receive for its collection duties. The undertaking is not identified therein. Additionally, the agreement states that the City and respondent “agree to comply in all respects with all applicable Federal, State, and local laws, regulations and ordinances.” I find that this broad commitment covers the undertaking requirement.
Petitioner next argues that the agreement should be invalidated because its provisions do not mandate that the City remit taxes to respondent within five days of receipt as required by Education Law § 2506 (1). That provision states that the tax “collector shall turn over to the city school district treasurer all moneys collected ... within five days of the day of their receipt.” The agreement, by contrast, contemplates a more flexible time period, whereby “[a]ny monies received between Monday and Friday will be reconciled with payments for such week and made to the School district on the following Wednesday....” Given the lack of discretion in Education Law § 2506 (1), I will direct respondent to amend paragraph 3 (d) of the agreement. The entire agreement need not be annulled due to this minor error, however, as it contains a severability clause under which the remainder of the agreement remains in full force and effect.
With respect to petitioner’s application for removal, the Commissioner of Education may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner (Education Law § 306 ; see Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).
Here, the actions of which petitioner complains do not rise to the level of a willful violation or neglect of duty under the Education Law. Petitioner has merely proven that the remittance of taxes pursuant to the agreement may exceed the five-day maximum established by Education Law § 2506 (1). While this was improper, there is no evidence that any member of the board acted in a willful manner; i.e., intentionally and with a wrongful purpose. The board members aver in affidavits that they “voted in favor of the Agreement in good faith  based upon [their] understanding of the District’s needs and ... applicable laws and rules.” Petitioner presents no evidence to contradict these assertions. As such, petitioner has failed to demonstrate that removal is warranted (see Application of Carbone, 46 Ed Dept Rep, Decision No. 15,485; Matter of Adsit, 2 id. 55, Decision No. 6,944 [“A technical violation, in the absence of willfulness, is not grounds for removal of a board member”]; Matter of McLean, 1 id. 650, Decision No. 6,876).
Finally, respondents request certificates of good faith on behalf of all board members named as respondents (see Education Law § 3811 ). Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1). The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594). Since there has been no finding that the individual respondents acted in bad faith, I hereby certify solely for the purpose of Education Law § 3811 (1) that the individual respondents are entitled to the requested certification.
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that, within 30 days of this decision, the City School District of the City of Watertown amend paragraph 3 (d) of the intermunicipal agreement described herein to conform to Education Law § 2506.
THE APPLICATION IS DENIED.
END OF FILE
 However, the City is not a proper party to petitioner’s application for removal under Education Law § 306. The only permissible respondents in such applications are board members, certain school officials, and school officers (Education Law § 306  [“any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer ...”]).