Application of JULIANNE C. GABRYEL for the removal of James T. Crean as a member of the Board of Education of the Orchard Park Central School District.

Decision No. 15,158

(January 6, 2005)

 

Bouvier, O’Connor, LLP, attorneys for petitioner, Charles D.J. Case, Esq., of counsel

 

Harter Secrest & Emery LLP, attorneys for respondent, Anthony D. Mancinelli, Esq., of counsel

 

MILLS, Commissioner.--Petitioner seeks the removal of James T. Crean (“respondent”) from the Board of Education of the Orchard Park Central School District (“district”). The application must be denied.

Respondent served as president of the seven-member board of education of the Orchard Park district during the 2003-2004 school year. Petitioner alleges that respondent prohibited the district’s superintendent from presenting the annual budget to the board of education at a public session, on February 10, 2004, in violation of Education Law §1711 and district policy. Petitioner also asserts that respondent improperly engaged in partisan political activity by advocating against the proposed budget before the budget vote, distributed misleading materials and made inappropriate public statements.

Petitioner further contends that respondent harassed another board member by forcing her to read aloud a letter she had written criticizing respondent at the board’s May 11, 2004 public meeting and publicly threatened to sue the board member for libel and slander. Petitioner generally alleges that respondent treats board members, administrators, staff, students and community members disrespectfully and that he smoked a cigar on district property in violation of school rules. Petitioner’s request for interim relief to prevent respondent from participating in the district’s budget process was denied on June 18, 2004.

Respondent denies petitioner’s allegations and argues that the appeal should be dismissed as untimely and for failure to join other board members as necessary parties. Respondent argues that the rest of the board should be joined because a majority voted at the February 10 meeting against allowing the superintendent to make an oral budget presentation at that meeting. Respondent also argues that petitioner’s memorandum of law was untimely and contains new assertions and evidence that should have been included with the petition.

Respondent denies that the superintendent did not have an opportunity to present the budget proposal and contends that the superintendent made oral presentations at subsequent public meetings. Respondent asserts that he campaigned against the budget in his individual capacity as a private citizen and did not improperly use district resources to espouse his views. Respondent denies harassing others or engaging in any conduct warranting his removal from the board. Respondent further denies that he publicly threatened legal action against the board member although he did tell her in private that he was exploring his legal options.

Although respondent argues that petitioner’s memorandum of law was untimely, I find it was timely submitted within a period of extension granted by my Office of Counsel. Petitioner, however, included new assertions and exhibits with her memorandum of law. A memorandum of law may not be used to belatedly add new materials and assertions that are not part of the pleadings (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Appeal of T.M., 41 id. 443, Decision No. 14,740; Appeal of D.C., 41 id. 190, Decision No. 14,661). I have therefore not considered the new exhibits or assertions.

Petitioner also submitted newspaper articles to support her position. It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Application of Lilly, supra; Appeal of Decastro, 41 Ed Dept Rep 415, Decision No. 14,730; Application of Wilson, 41 id. 196, Decision No. 14,663). In addition, petitioner sent numerous newspapers and letters raising additional claims to my Office of Counsel without leave and, with few exceptions, without service on respondent as required by §276.5 of the Commissioner’s regulations. Therefore, I have not considered any of these submissions.

The appeal, as it relates to respondent’s conduct at the February 10, 2004 meeting, is dismissed as untimely. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16). The 30-day limitation period also applies to removal applications made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Lilly, supra; Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Application of Downing, 40 id. 396, Decision No. 14,509).

Petitioner did not commence this appeal until June 5, 2004, well beyond the 30-day period, and offers no excuse for her delay. Moreover, the case relied upon by petitioner (Appeal of Maliha, 41 Ed Dept Rep 367, Decision No. 14,716) is inapplicable since petitioner is not contesting the validity of the election or seeking to overturn the election results. Thus, petitioner’s claims regarding those acts that occurred more than 30 days before the appeal was commenced are untimely and the appeal is dismissed as to them (Appeal of Hubbard, 43 Ed Dept Rep 3, Decision No. 14,898; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Carroll, et al., 42 id. 326, Decision No. 14,871).

The remainder of the appeal must be dismissed on the merits. A member of the board of education may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the 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 of Education (See also, Application of Kavitsky, 41 Ed Dept Rep 231, Decision No. 14,672; Application of Lilker, 40 id. 704, Decision No. 14,588; Application of Kozak and Hetey, 40 id. 195, Decision No. 14,459). To be considered willful, respondent’s actions must have been intentional and with a wrongful purpose. In an appeal or removal application to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR §275.10; Application of Lilly, supra; Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 329, Decision No. 14,702; Appeal of L.S., 41 id. 270, Decision No. 14,683).[1]

Petitioner argues that respondent improperly advocated against the proposed budget and submits budget election fliers which she claims respondent was responsible for distributing. While it is improper for a board of education, as a corporate body, to be involved in partisan activity, individual board members are entitled to express their personal views about issues concerning the district and engage in partisan activity, provided school district funds or resources are not used (Appeal of Goldin, 40 Ed Dept Rep 628, Decision No. 14,572; Appeal of Allen, 39 id. 528, Decision No. 14,300). Respondent admits that he campaigned against the proposed budget in his individual capacity and denies responsibility for the campaign fliers. Petitioner does not contend that respondent used district resources to publicly advocate against the proposed budget, nor does she offer any evidence connecting respondent to the fliers or to the private group(s) apparently responsible for distributing them.

Petitioner also submitted an affidavit from the board member who was allegedly harassed and two emails allegedly sent to that board member by respondent. The board member admits that she requested the opportunity to read her critical letter to the board in public session, but that respondent insisted that she finish reading the letter and claims he later threatened her with legal action. The board member, along with petitioner, objects to respondent’s conduct, including his use of offensive language, his written reference to himself as “King James” and his written statement that he was going to use a “chainsaw” to cut the budget proposal. Petitioner has also submitted two petitions, from students and residents, in support of removing respondent from the board and requesting that he not speak at the district’s high school graduation ceremonies in June 2004. Petitioner makes a number of conclusory allegations regarding respondent’s behavior, including smoking on school property without any evidence in the record to support her allegations.

Removal may be warranted where a board member's improper conduct occurs during a board meeting and disrupts the meeting or interferes with the board's ability to function (Application of Lilly, supra; Application of Kozak, 34 Ed Dept Rep 501, Decision No. 13,396). Petitioner, however, has not established that respondent’s conduct rises to this level. Although the record indicates that respondent used profanities in one email sent to another board member, and may have used profanities in executive sessions of the board, there is no evidence that those profanities were aimed at other board members, or that they were said to degrade or threaten other board members. Nor is there any evidence that this behavior interfered with the board’s ability to function. Thus, on the record before me, I cannot conclude that those actions rise to a willful violation or neglect of duty under the law.

While respondent's conduct on this limited record may not warrant removal, I urge respondent to ensure that his personal opinions regarding budgetary or other election matters are clearly identified as such. I also strongly urge respondent to be mindful of his conduct and language as a school district official. A board member has a duty to proceed with constructive discussions aimed at achieving the best possible governance of the school district (Application of Lilly, supra; Application of Kozak, supra), and respondent’s apparent approach to his responsibilities is not likely to result in creating the positive and respectful relationships necessary to an effective governing board.

In light of this determination, I need not address the parties’ remaining contentions.

 

THE APPLICATION IS DENIED.

END OF FILE

 

[1] A school board may also in the first instance remove any of its own members for official misconduct. Education Law §§1709(18) & 2503(1); Appeal of Taber, 42 Ed Dept Rep 251.