Application of MARILYNN LEWIS for the removal of Roger B. Clough II as Superintendent of the Walton Central School District.

Decision No. 16,874

(February 9, 2016)

The Law Firm of Frank W. Miller, attorneys for respondent, Christopher M. Militello, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks the removal of Roger B. Clough II from his position as Superintendent of Schools (“respondent” or “superintendent”) in the Walton Central School District (“district”).  The application must be denied.

A member of the board of education or a school officer, including a superintendent, 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 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 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).

Petitioner sets forth four categories of allegations as grounds for respondent’s removal: certain conduct that occurred while respondent was superintendent of the Massena Central School District[1]; respondent’s role in the termination of two district employees; the district’s website, responses to questions from the public and the nature of discourse at meetings of the district’s board of education; and allegations regarding the establishment and management of the district’s Shared Decision Making Committee (“Committee”).

Respondent contends that the application should be dismissed because it did not contain the proper notice, was not personally served upon respondent, was not signed or properly verified, is untimely, and fails to state a cause of action upon which relief can be granted. 

The application must be dismissed as the notice of petition is defective.  Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office.  In this case, petitioner failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of Carrion, 50 Ed Dept Rep, Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Emerling, 51 Ed Dept Rep, Decision No. 16,352; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

Although the application is denied on jurisdictional grounds, I must address an administrative matter. Respondent has requested that I issue him a certificate of good faith pursuant to Education Law §3811(1). Such certification is solely for the purpose of authorizing the board to indemnify respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a school district officer. It is appropriate to issue such certification unless it is established on the record that the requesting officer acted in bad faith (Applications of Lilly, 47 Ed Dept Rep 307, Decision No. 15,705; Application of Berman, 46 id. 378, Decision No. 15,537; Application of Mazile, 45 id. 378, Decision No. 15,356). In view of the fact that the application here is dismissed on procedural grounds and there has been no finding that respondent acted in bad faith, I hereby certify solely for the purpose of Education Law §3811 that respondent appears to have acted in good faith.

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

THE APPLICATION IS DENIED.

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