Decision No. 13,752

(April 2, 1997)

Whiteman Osterman & Hanna, attorneys for the respondent, Melvin H. Osterman, Esq., and

Beth A. Bourassa, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Peter Murphy ("respondent") as a member and president of the Board of Education of the Wynantskill Union Free School District. The application must be denied.

Petitioner, a district resident, alleges that respondent used his title as president of the Board of Education of the Wynantskill Union Free School District improperly to encourage district residents to vote in favor of a proposed budget and to state his personal opinions by submitting letters for publication in a local newspaper. In support of her allegations, petitioner has submitted photocopies of five letters written by respondent, two by the vice president of the board of education, and one signed jointly by respondent and the vice president, that were published in the newspaper. Four of the letters were apparently written by respondent during his term as president of the board of education and one was written before he became president while he was serving as a board member. The letters were published on dates spanning between June 1995 and May 1996 and contain factual information and opinions. Petitioner concedes that no district funds were used to produce or publish these letters. Petitioner contends that respondent's use of the title board president in signing these letters without a board resolution approving that use was improper and created the impression that he represented the school district. Petitioner further contends that respondent allowed other board members to use their board titles to represent the school district, in written form, without board approval through a resolution. Finally, petitioner claims that respondent's letters constituted intimidation designed to influence voters to pass the May 15, 1996 proposed budget.

Respondent denies the allegations and contends that petitioner fails to state a claim because respondent did not violate any law or regulation, that the appeal is untimely as to all but one of the letters, and that the petition is moot to the extent that it asks for the removal of respondent as president of the board because he no longer holds that position. Respondent contends that he is entitled to exercise his constitutional right to free speech, provided that district funds are not used.

Petitioner commenced her appeal on May 24, 1996. In accordance with the provisions of '275.16 of the Regulations of the Commissioner, an appeal must be commenced within 30 days of the act complained of. With the exception of one letter by respondent published in May 1996, the letters petitioner complained of were all published more than 30 days prior to the commencement of this appeal. The appeal is therefore dismissed as untimely with respect to the letters published prior to April 1996.

In addition, respondent no longer serves as president of the board of education, having become vice president on July 1, 1996, during the pendency of this appeal. The Commissioner of Education will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Douglas and Judy H., 36 Ed Dept Rep 224; Appeal of Lovelock, 36 id. 2). The appeal is therefore dismissed to the extent that it seeks respondent's removal as president of the board. However, because respondent remains an elected member of the board, petitioner's charges seeking his removal as a member of that board are not moot.

Petitioner's remaining contentions must be dismissed on the merits. A board of education may not use district funds to exhort the electorate to support a particular position in an election (Phillips v. Maurer, 67 NY2d 672). Moreover, it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Weaver, 28 Ed Dept Rep 183). Petitioner makes no allegation that district funds were used and respondent states that no district funds were used. Likewise, petitioner has made no allegation of improper conduct by the board of education as a corporate body. Although an individual board member is not entitled to have his opinion published at district expense in board publications, this does not mean that he may not communicate his views at his own expense (Matter of Wolfe, 17 Ed Dept Rep 297). Individual board members are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used (Appeal of Carroll, 33 Ed Dept Rep 219; Appeal of Weaver, supra).

Education Law '306 authorizes the Commissioner of Education to remove a member of a board of education for willful violation or neglect of duty under the law. To be considered willful, respondent's actions must have been intentional and with a wrongful purpose (Application of Brousseau, 35 Ed Dept Rep 291; Application of Cobler, 35 id. 176). Petitioner has failed to establish that respondent violated any law or neglected his duty in any way. Petitioner cites no authority for the proposition that a board officer may not use his or her title when writing a letter, at no expense to the district, for publication in a newspaper in order to express an opinion or advocate for a proposed budget. Likewise, petitioner did not submit any evidence to indicate that a board rule or policy was violated in any way by respondent's use of his board title in the letter in question. In this case respondent only expressed his own opinion and did not purport to speak for the board. There is no evidence that respondent intentionally mislead the readers of the newspaper. In view of the foregoing, I do not find that petitioner's actions rose to the level of willful misconduct necessary to justify his removal from office under Education Law '306.

Petitioner also contends that respondent's actions in publishing these letters had the effect of intimidating the public and thereby affecting the outcome of the election. Petitioner offers no evidence to support this allegation. An examination of the letter remaining in question reveals that it contains mostly factual information. Only the title of the letter, which may have been supplied by the newspaper, and the last sentence asking for support indicate that respondent was asking people to vote for the budget. Merely requesting such support does not constitute intimidation of the electorate and petitioner fails to provide any evidence that voters felt compelled to vote for the proposed budget because of respondent's letter. I find petitioner's contention to be without merit.

THE APPEAL IS DISMISSED.

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