Decision No. 18,347
Application of ADRIANNE RICKSON for the removal of District Superintendent Anita Murphy; Senior Executive Officer Joseph P. Dragone; Deputy District Superintendent Lauren Gemmill; Board President John Phelan; Board Vice President Naomi Hoffman; and trustees Brian Backus, John Bergeron, Nancy delPrado, Kevin Kutzscher, Lynne Lenhardt, Matthew Tedeschi, and Bruce Tryon; and Board Coordinator Mary Beth Bruno of the Albany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services.
Decision No. 18,347
(October 2, 2023)
Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel
ROSA., Commissioner.--Petitioner seeks the removal of District Superintendent Anita Murphy (“DS Murphy”); Senior Executive Officer Joseph P. Dragone; Deputy District Superintendent Lauren Gemmill; Board President John Phelan; Board Vice President Naomi Hoffman; and board members Brian Backus, John Bergeron, Nancy delPrado, Kevin Kutzscher, Lynne Lenhardt, Matthew Tedeschi, and Bruce Tryon; and Board Coordinator Mary Beth Bruno (collectively, “respondents” or “board members”) from their positions with the Albany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services (“BOCES”). The application must be denied.
This appeal arises out of the events described in Appeal of Rickson (62 Ed Dept Rep, Decision No. 18,147) (“Rickson I ”) and Appeal of Rickson (62 Ed Dept Rep, Decision No. 18,211) (“Rickson II ”). In brief, respondent terminated petitioner’s probationary appointment in Rickson I based on three stated reasons that I found to be “too vague to allow petitioner to ascertain whether any of the reasons were constitutionally or statutorily impermissible.” For relief, I remanded the decision to the board and ordered, among other things, that the district superintendent resubmit her recommendation with “appropriate specifics of the reasons therefor.” I also directed the board to make a new decision regarding the proposed discontinuance of petitioner’s probationary appointment.
DS Murphy submitted a modified recommendation to the board at its August 15, 2022 meeting, which again recommended termination of petitioner’s probationary appointment. That decision formed the basis of petitioner’s appeal in Rickson II. In a decision dated November 22, 2022, I found that petitioner’s probationary appointment was discontinued in bad faith because BOCES materially modified the reasons for which it sought petitioner’s discontinuance. I further found that “[t]he reasons that [the board] provided on remand for petitioner’s discontinuance”—that she violated a non-solicitation policy and delivered an assignment outside of the board-approved curriculum—were pretextual; as such, they further supported the finding of bad faith. I annulled respondent’s determination and ordered “that petitioner be reinstated to her position and awarded back pay and benefits from April 21, 2022, the date of her wrongful discontinuance, to her date of reinstatement ....”
Over a month after this decision, petitioner contacted SED’s Office of Counsel, indicating that she had not been reinstated or awarded back pay. Petitioner provided a communication from counsel for BOCES indicating that BOCES intended to seek judicial review of Rickson II.
In an email to DS Murphy dated December 29, 2022, SED’s Counsel & Deputy Commissioner (“SED Counsel”) indicated: “[i]t appears that ... BOCES has not yet implemented the Commissioner’s decision in Appeal of Rickson .... That decision required Ms. Rickson’s immediate reinstatement—or at least within a reasonable time.” SED Counsel requested that, if an appeal was not forthcoming, DS Murphy provide information as to “what precluded BOCES from implementing the decision.” DS Murphy responded later that day, indicating that petitioner would be returned to payroll and given backpay, but that the BOCES was “not yet sure of her assignment ....” DS Murphy further confirmed that BOCES intended to appeal the decision.
On January 3, 2023, BOCES instituted a proceeding pursuant to Article 78 of the Civil Practice Law & Rules in Albany County Supreme Court challenging my determination in Rickson II. Supreme Court declined to award interim relief to BOCES. This application ensued.
Following commencement of this appeal, by Decision, Order and Judgment dated July 27, 2023, Supreme Court upheld Rickson II in its entirety.
Petitioner contends that respondents should be removed because, among other reasons, they willfully disobeyed my decision in Rickson II. Petitioner also argues that DS Murphy improperly denied a request to discuss her circumstances in executive session. For relief, petitioner requests the removal of all respondents and an award of costs and fees.
Respondents contend that the petition is moot because petitioner was restored to the district’s payroll as of January 3, 2023 and paid all back wages as of January 13, 2023. Respondents additionally contend that they have not engaged in a willful violation of law or neglect of duty because they generally acted upon advice of counsel.
The application must be denied as moot with respect to DS Murphy. 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). According to records of the State Education Department, Anita M. Murphy retired from her position as District Superintendent as of June 29, 2023 (8 NYCRR 276.6). Thus, no relief may be awarded with respect to former DS Murphy.
Additionally, the application must be denied with respect to Ms. Gemmill, Mr. Dragone, and Ms. Bruno. Education Law § 306 (1) authorizes the Commissioner to remove “any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer.” Under the Education Law, the term “school officer” includes any “elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system” (Education Law § 2 ; see Appeal of Johnston, 50 Ed Dept Rep, Decision No. 16,184). The record reflects that Ms. Gemmill and Mr. Dragone are BOCES employees who do not meet this statutory definition. Additionally, there is no evidence that Ms. Bruno, who is identified as the board coordinator, served as a school officer or engaged in any misconduct during any of the events described herein. As such, the application must be denied as against Ms. Gemmill, Mr. Dragone, and Ms. Bruno.
Turning to the merits, 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). To be considered willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose (see Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Nett and Raby, 45 id. 259, Decision No. 15,315).
In an appeal or removal application 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).
While BOCES’ delay in reinstating petitioner is concerning, I decline to remove the board members from office. The respondents, individual members of the BOCES board, voted to authorize an appeal of Rickson II and received advice from their counsel in connection therewith. The board members describe this course of events as follows:
On December 2, 2022, the Board was advised by ... [c]ounsel ... that the Commissioner had ruled against the Board ... [we] understood based on [the] [a]ttorney[’s] ... memorandum that [the] [a]ttorney ... consulted with ... outside litigation counsel and was recommending that the Board appeal the Rickson Decision and seek a stay of enforcement of that decision.
On December 19, 2022, the Board met with [their] [a]ttorney ... in executive session ... [The] [a]ttorney ... advised that ... outside legal counsel was prepared to immediately commence a special proceeding in court to challenge the Rickson Decision and to seek an injunction .... The Board voted to authorize the commencement of the appeal by resolution.
Due to circumstances outside the board members’ control, the judicial appeal was not filed until January 3, 2023.
The crucial question in this application is whether any board member understood that petitioner was not going to be paid or reinstated while their attorneys prepared and filed the judicial appeal. While the record does not provide a clear answer, I nevertheless decline to remove any members of the board. The practical responsibility for implementing my decision lay with the District Superintendent and BOCES staff, not the board. Moreover, to the extent they received legal advice concerning this issue, board members who act on the advice of counsel lack the requisite willfulness to warrant removal from office unless no reasonable person could have believed the advice to be lawful (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Matter of an Appeal against the Actions of the BOCES, Third Supervisory Dist., Suffolk Co., et al., 32 Ed Dept Rep 519, Decision No. 12,905). Any legal advice justifying respondents’ actions would not, in my view, meet this demanding standard.
This does not mean that I condone BOCES’ conduct. BOCES does not identify any legal authority for the proposition that it was entitled to delay implementation of my decision in Rickson II. Moreover, the evidence in the record suggests that BOCES did not implement the decision in an attempt to bolster its case for temporary relief in the judicial appeal. In an affidavit submitted with this appeal, counsel for BOCES indicates that she spoke with outside counsel on November 28, 2022 and “expressed concern that the time lapse”—i.e., filing the judicial appeal a few weeks after Rickson II—“would affect the request for a stay.”
This was improper. Petitioner had a legal right to return to the classroom, with pay, within a reasonable time after issuance of my decision. Not only did BOCES fail to do this, but it did not clearly communicate with petitioner about her status for over a month. And, even then, counsel for BOCES only did so in response to petitioner’s inquiry “about the process for [her] reinstatement, backpay, etc.” This exceeded any reasonable period necessary to implement my decision and deprived petitioner of work, and pay, for over a month. I remind BOCES that, absent a judicial order, it must implement all orders of the Commissioner, even those with which it disagrees (see Education Law §§ 306, 310, 311).
Finally, respondents request a certificate of good faith pursuant to 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). For the reasons described above, I am constrained to certify that the respondents named herein acted in good faith.
Petitioner’s remaining claims are outside the jurisdiction of the Commissioner of Education, without merit, or do not warrant removal under Education Law § 306.
THE APPLICATION IS DENIED.
END OF FILE
 Internal quotation marks, brackets, and citations omitted.
 I have assumed, which respondents contest, that each board member was appropriately named in the caption of the petition and served with a copy of the application.
 This board meeting was originally scheduled for December 15, 2022 but was rescheduled due to inclement weather.
 The primary consideration in determining whether to grant a temporary restraining order or preliminary injunction is the preservation of the status quo. See Ulster Home Care Inc. v. Vacco, 255 AD2d 73, 76 [3d Dept 1999] [“a preliminary injunction is intended to preserve the status quo during the pendency of the action”]; Heisler v. Gingras, 238 AD2d 702, 703 [3d Dept 1997]).
 I acknowledge that it may have been difficult to restore petitioner to a classroom teaching assignment given the timing of the decision. However, the record contains no evidence that BOCES attempted to identify any assignment for petitioner whatsoever.