Appeal of JANE DONAHUE, FRANK HAY and HOLLY SIMS on behalf of students, resident taxpayers and employees of the Beekmantown Central School District from action of the Board of Education of the Beekmantown Central School District regarding the reassignment of school principals and application for the removal of board members Steve Trombley, Leonard King, Cathy Buckley, Stan Kourofsky, Richard LaVigne, Carole Race, Ed Marin, Karen Armstrong and Pauline Stone.

Appeal of DAVID J. ANDERSON, ROBERT J. COLLIER and JOHN P. BRADLEY on behalf of students of the Beekmantown Central School District from action of the Board of Education of the Beekmantown Central School District regarding the reassignment of school principals.

Decision No. 16,431

(November 16, 2012)

The Mills Law Firm L.L.P., attorneys for respondents, Gregory S. Mills, Esq., of counsel

KING, JR., Commissioner.--In two separate appeals, petitioners challenge the actions of the Board of Education of the Beekmantown Central School District (“board”), and board members Steve Trombley, Leonard King, Cathy Buckley, Stan Kourofsky, Richard LaVigne, Carole Race, Ed Marin, Karen Armstrong and Pauline Stone (collectively “respondents”) regarding the transfer of school principals.  Petitioners Donahue, Hay and Sims (“Appeal I”) also seek the removal of the named board members.  Because the appeals and applications present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed and the application denied. 

On July 5, 2011, the board voted to transfer Beekmantown High School Principal Garth Frechette to Cumberland Head Elementary School and to transfer Cumberland Head Elementary School Principal Diane Fox to Beekmantown High School.  These appeals ensued.  Petitioners’ request for interim relief in Appeal I was denied on August 8, 2011. 

All petitioners allege that the board violated due process, did not understand or discuss the resolution on which they  voted  and failed to provide a rationale for their decision.  All petitioners contend that the board violated its own policies and goals and that the superintendent did not approve of or recommend the transfers. 

Petitioners in Appeal I also allege that board members acted negligently, with a wrongful purpose and not in the best interest of students, taxpayers and school staff.  They request that I overturn the board’s July 5, 2011 decision and remove the named board members.  Petitioners Anderson, Collier and Bradley (“Appeal II”) request that I order an “immediate mediation” of the parties’ dispute in order to ensure that the board’s action “was done properly.”

Respondents maintain that the resolution passed following all due process requirements, in accordance with board policies and pursuant to the board’s powers under the Education Law.  Respondents also maintain that they were not required to provide a rationale for the board’s decision and that the transfers were not made for a wrongful purpose or in willful violation or neglect of duty.  Respondents contend that the transfers were in the best interest of the district and that the individual respondents were not confused about the resolution.

I must first address several procedural issues.  Petitioners in Appeal II submit four newspaper articles to support their position.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such articles for the veracity of their content.

Petitioners in Appeal I attempt to bring their appeal and application on behalf of students, resident taxpayers and employees of the district, and petitioners in Appeal II attempt to bring their appeal on behalf of students of the district.  Although petitioners, as district residents and taxpayers, have standing to maintain the appeals and application, to the extent they seek class certification, they have failed to meet the requirements therefore.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Petitioners’ pleadings are entirely devoid of any allegations addressing these criteria.  Class status is therefore denied.

Appeal I must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioners in Appeal I seek to overturn the board’s decision to transfer Frechette and Fox.  Because Frechette and Fox would be affected if petitioners prevail on the appeal they are therefore necessary parties to Appeal I and petitioners’ failure to join them requires dismissal.

The sole relief sought in Appeal II is that I order “immediate mediation” between the board and the community – conducted by a designee from the State Education Department – to ensure that the board’s July 5, 2011 action was “done properly” in accordance with state law, applicable district policies and “the best interest of” the district’s students.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).  Although petitioners do not explicitly request an investigation, their request for a mediation process to determine the propriety of the board’s action in light of their complaints is, in essence, a request for an investigation – relief that is not available in the context of an appeal under §310 of the Education Law (seeAppeal of Combier, 42 Ed Dept Rep 223, Decision No. 14,831).  Accordingly, the appeal must be dismissed because the sole relief sought by petitioners is beyond the authority of the Commissioner to grant (see Appeal of Baker, 39 Ed Dept Rep 690, Decision No. 14,350).

The only remaining claim is the removal application brought by petitioners in Appeal I.  A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Based on this record, petitioners in Appeal I have failed to establish that the actions of the individual respondents in voting to transfer the two principals warrant their removal.  Petitioners allege that the individual respondents violated due process and board goals and policies regarding facilitation of an “open dialogue” with the community and “dissemination of information to the community concerning issues and activities in the school.”  Petitioners also allege that respondents’ conduct violated board policies stating that board action “should be confined to policy-making, planning and appraisal with the Board delegating authority to the Superintendent for the implementation of policies,” and that, “[e]xcept in emergencies, the Board shall not attempt to decide upon any question under consideration before examining and evaluating relevant information.  The Superintendent shall be given an opportunity to examine and to evaluate all such information, and to recommend action before the Board attempts to make a decision.”

However, the alleged violations, even if proven, would not, on the record before me, rise to the level of willful violation of law and neglect of duty that would constitute sufficient grounds for the removal of the individual respondents.  Indeed, the record reflects that all nine board members discussed the transfers in the presence of the superintendent and board counsel at an executive session on June 30, 2011.  On July 5, 2011, the board permitted public comment on the issue.  All nine members then voted on the transfers with six in favor and three opposed.  While the record indicates that board members disagreed on the issue and that two board members voiced concerns about the process, this in and of itself does not render the vote or the process violative of board policy or due process.  Further, petitioners cite no authority requiring that the board provide a rationale or explanation for its decision under these circumstances.

Finally, I note that the board of education of a central school district possesses the authority to transfer a principal and there is nothing in the Education Law or Commissioner’s regulations which require a recommendation of the superintendent (see Education Laws §1709(33), 1804[1]; 8 NYCRR §100.2[a]; Appeal of Lander, et al., 42 Ed Dept Rep 201, Decision No. 14,822).

On the record before me, petitioners have not met their burden of demonstrating that respondents engaged in any willful or intentional misconduct warranting their removal from office.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEALS ARE DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE.