Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF GLOVERSVILLE for the removal of Peter Semione as a board member.

Decision No. 16,857

(December 30, 2015)

Mark R. Rose and Armond J. Festine, Esqs., attorneys for petitioner

Luibrand Law Firm, PLLC, attorneys for respondent, Kevin A. Luibrand, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks the removal of Peter Semione (“respondent”) as member and president of the Board of Education of the City School District of the City of Gloversville (“board” or “board of education”).  The application must be denied.

Petitioner’s application is based on allegations that respondent made inappropriate public and private statements to other board members.  According to petitioner, when the district’s acting superintendent proposed an “involuntary transfer” of the high school and middle school music teachers into each other’s position at a board meeting, there was public opposition and “many questions” that the board was unable to answer at the time.  Petitioner asserts that, consequently, several board members decided to arrange for a “special board meeting” on September 5, 2012, to further address the matter.  Board member Frank Carangelo met with the acting superintendent to arrange the special meeting.

According to petitioner, on August 31, 2012, respondent telephoned Mr. Carangelo and spoke to him in a loud and aggressive manner regarding his and the other board members’ involvement in the teacher transfer issue.  Petitioner claims that respondent accused Mr. Carangelo of having an undisclosed “conflict of interest” and stated that he “had something on” all the board members and they were “all going to be put in [their] place.”  Moreover, petitioner claims that respondent told Mr. Carangelo that he should “get his son in law to stop causing trouble if [Mr. Carangelo’s son in law] wanted to keep his job as coach.”  Petitioner states that respondent also contacted board member Joseph Andrews and began to “yell, scream, and otherwise in an aggressive and threating manner chastise him for getting involved” regarding the transfer of the music teachers. 

According to petitioner, respondent used profanity when talking to Mr. Andrews and, inter alia, stated that respondent made all board decisions and Mr. Andrews was not allowed to communicate further with other board members without respondent’s specific permission.  Additionally, petitioner asserts that respondent spoke similarly to board member Polly Peck and made disparaging remarks about other board members.  Finally, petitioner states that respondent telephoned Mr. Carangelo on September 1, 2012, regarding the teacher transfer issue and threatened to “bury you all.” 

Petitioner seeks respondent’s removal from the board for the above-described behavior.  Petitioner asserts that, subsequent to these incidents, respondent did not attend, or walked out of, three board meetings and has not retracted or expressed remorse or misgivings regarding his alleged statements.  Petitioner contends that respondent has, therefore, engaged in a course of conduct which is a distraction to the board and the regular conduct of its business.  Petitioner argues that respondent’s conduct after the incidents constitutes good cause to excuse any delay in its commencement of this appeal.  Petitioner also explains the delay was due to difficulty in obtaining legal counsel.  Finally, petitioner argues that respondent’s behavior constitutes aggravated harassment in the second degree under the New York State Penal Law.      

Respondent contends that the appeal must be dismissed as untimely. Respondent denies harassing others or engaging in any conduct warranting his removal from the board.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced 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; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  In the instant appeal, the specific actions cited by petitioner in support of its application occurred on two days, August 31 and September 1, 2012.  The affidavit of service indicates that petitioner did not serve the instant appeal until November 27, 2012, beyond the required 30-day period.[1] 

Petitioner asks that I excuse the delay in commencing the appeal based on respondent’s continued course of conduct “at least through the end of September.”  However, petitioner does not set forth any further specific acts by respondent other than the two dates cited above.  Petitioner explains that it held out the expectation that perhaps respondent “would try to rectify his previous aggressive outbursts” but, apparently, respondent did not attend subsequent board meetings at which he could have done so.

Furthermore, petitioner asserts that it had to retain outside legal counsel because the school district’s attorney recused himself, thus contributing to the delay.  However, petitioner fails to indicate when that recusal took place.  Although I appreciate petitioner’s desire to resolve the situation in the first instance, such does not constitute a basis to excuse its delay until November to commence the appeal, nor is petitioner’s decision to retain outside counsel, without further details, sufficient to excuse the delay.  Therefore, petitioner’s application for removal is untimely. 

The application must also be dismissed as moot.  The Commissioner 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner seeks the removal of respondent from office as member of the board.  I take judicial notice that respondent Semione is no longer a member of the board and the matter, therefore, is moot (see Appeal of Affronti, 54 Ed Dept Rep, Decision No. 16,756). 

Even if the appeal were not dismissed on procedural ground, it would be dismissed on the merits.  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).  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, 43 Ed Dept Rep, Decision No. 15,050; Application of Kozak, 34 id. 501, Decision No. 13,396).

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).  On this record, petitioner has failed to sustain its burden.

Respondent denies engaging in the alleged conduct.  Other than the statements in its petition, petitioner failed to submit any supporting affidavits from any board member establishing the facts alleged – that they were harassed or threatened by respondent or that the board could not function as a result of his alleged conduct.  Moreover, although respondent may have used profanity in speaking to several board members, the use of profanity and failure to apologize is not by itself, enough to warrant removal (see Application of Gabryel, 44 Ed Dept Rep 235, Decision No. 15,158).  Consequently, petitioner has not carried its burden in establishing the facts on which it bases its application.

Finally, petitioner alleges that respondent has engaged in a willful violation of law warranting removal, as his conduct also constitutes Aggravated Harassment in the second degree, as defined in section 240.30 of the New York State Penal Law.  However, petitioner has not submitted any evidence of pending charges or a conviction against respondent and has therefore not carried its burden of proof in this regard. 

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

THE APPLICATION IS DENIED.

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