Skip to main content

Decision No. 18,201

Application of BENJAMIN COLE, et al., for the removal of Brian Russ, Jessica B. Armbrust, Terri Ohlweiler, D. Paul Blowers, Daniel Brunson, Joseph Cassidy, Kimberlee Danieu, and Judith Malys as members of the Board of Education of the East Aurora Union Free School District.[1]

Decision No. 18,201

(October 12, 2022)

Rupp Baase Pfalzgraf Cunningham LLC, attorneys for petitioners, R. Anthony Rupp III and Chad A. Davenport, Esqs., of counsel

Webster Szanyi LLP, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioners[2] seek the removal of Brian Russ, Jessica B. Armhurst, Terri Ohlweiler, D. Paul Blowers, Daniel Brunson, Joseph Cassidy Kimberlee Danieu and Judith Malys as members of the Board of Education of the East Aurora Union Free School District (“respondents”).  The application must be denied.

Petitioners raise five principal complaints against respondents:  (1) respondents have not updated or adopted all legally required policies; (2) the board’s district-wide school safety plan is inadequate; (3) respondents surveilled or harassed petitioner Horning by taking a photograph of her vehicle; (4) a recording of a classroom teacher submitted to respondents demonstrates bullying or harassment;[3] and (5) respondents unlawfully placed petitioners Shoemaker and Rogers on unpaid leave.  For relief, they seek respondents’ removal from office.

Respondents allege that the application must be denied for lack of the notice required by 8 NYCRR 277.1 (b), lack of standing, election of remedies, and as untimely.  On the merits, respondents deny petitioners’ allegations and argue that petitioners have not alleged any acts that would constitute a willful violation of the Education Law.  Respondents request certification that they acted in good faith.

The application must be dismissed for lack of the specialized notice required by section 277.1 (b) of the Commissioner’s regulations.  This regulation dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832). Thus, a removal application, as here, that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (see Application of DiLorenzo, 62 Ed Dept Rep, Decision No. 18,183; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

In response, petitioners assert that the State Education Department’s website did not sufficiently apprise them of this legal requirement.  The Commissioner has held that “ignorance of applicable laws and regulations does not excuse a petitioner’s lack of compliance therewith” (Application of S.D., 60 Ed Dept Rep, Decision No. 18,009; Appeal of D.B., 59 id., Decision No. 17,807; Appeal of Kirk, 39 id. 567, Decision No. 14,313).  Moreover, petitioners are represented by counsel, who are responsible for providing competent representation to their clients.

Petitioners also argue that they served a notice of petition that was in substantially the same form as prescribed by 8 NYCRR 277.1 (b).  I disagree.  Petitioners’ notice utilized the language applicable to the notice of petition in a charter school location/co-location appeal (see 8 NYCRR 276.11 [c] [2]).  Crucially, this notice does not apprise the recipient that “the petition and affidavits ... will be presented to the Commissioner of Education at Albany, and application thereon made for [their] removal from … office ....”  Therefore, it is not in substantially the same form as the language set forth in 8 NYCRR 277.1 (b).[4]

Petitioners further seek permission to serve a copy of the correct notice “[s]hould the Commissioner find it necessary....”  The Commissioner has previously explained that, upon realization that papers are jurisdictionally defective, a petitioner’s “recourse [is] to personally serve papers which contained a notice of petition” (Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527; see Appeals of Sitaris and Saint Basil Academy, 43 id. 434, Decision No. 15,044; Appeal of Mitchell, et al., 40 id. 88, Decision No. 14,428).  Petitioners have not done so.[5]

Finally, respondents request certification of good faith on behalf of all board members named as respondents (see Education Law § 3811 [1]).  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.

In light of this determination, I need not address the parties’ remaining arguments, including respondents’ additional procedural defenses and objections to documents and pleadings submitted by petitioners.




[1] Respondents indicate that the caption of the petition contains two typographical errors; these errors are corrected above.  Additionally, petitioners name the board of education and school district as respondents.  “The only permissible respondents in [removal] applications are board members, certain school officials, and school officers” (Appeal and Application of Eisenhauer, 62 Ed Dept Rep, Decision No. 18,189).  Because the sole remedy sought by petitioners is removal of the individual board members, the appeal must be dismissed as against the board and district.


[2] The remaining petitioners are Denine Cole, Becky S. Horning, Michelle Kavanaugh, Amy Rogers, Colin Shoemaker, and Dawn Kavanaugh.


[3] Respondents indicate, in their answer, that they investigated this claim in accordance with the Dignity for All Students Act.


[4] While the Commissioner has excused the use of the language applicable to the notice of petition in a charter school location/co-location appeal for a pro se petitioner in an appeal under Education Law § 310 (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,988), the location/co-location notice is insufficient to apprise school officers that a petitioner seeks their removal from office.


[5] Appeal of Hadden, cited by petitioners, is distinguishable as the petitioner utilized the exact language contained in 8 NYCRR 277.1 (b) (57 Ed Dept Rep, Decision No. 17,253 [“the language contained in the notice of petition is identical to the language recommended in 8 NYCRR 277.1 (b)”]).  Judicial authority interpreting compliance with the Civil Practice Law and Rules (CPLR) is inapposite and unpersuasive (i.e. Matter of Blauman-Spindler v Blauman, 68 AD3d 1105, 1106 [2d Dept 2009] [interpreting petitioner’s compliance with CPLR 2214 (a)]; Matter of LiMandri, 171 AD2d 747 [2d Dept 1991] [same]).