Application of FLORENCE D. JOHNSON, SHARON BELTON-COTTMAN, THERESA HARRIS-TIGG, MARY RUTH KAPSIAK and BARBARA A. NEVERGOLD for the removal of Jason M. McCarthy as a member of the Board of Education of the City School District of the City of Buffalo.

Decision No. 17,055

(March 6, 2017)

DeMarie & Shoenborn, attorneys for respondent, Edward Betts, Esq., of counsel

ELIA, Commissioner.--Petitioners seek removal of Jason M. McCarthy (“respondent”) from office as a member of the Board of Education of the Buffalo City School District (“board”). The application must be denied.

Petitioners, Florence D. Johnson, Sharon Belton-Cottman, Theresa Harris-Tigg, Mary Ruth Kapsiak and Barbara A. Nevergold, are all district residents, taxpayers and current or former members of the board.  Petitioner's seek an order pursuant to Education Law §306 for removal of respondent board member Jason M. McCarthy, from office for willful violation of the Education Law, General Municipal Law §805-a(1)(b) and Public Officers Law §105, and engaging in acts of willful misconduct in violation of the district's code of ethics and policies concerning the confidential nature of the board's executive sessions.

Petitioners claim that respondent knowingly and willfully divulged confidential information gleaned from an executive session of the board on June 11, 2014 in violation of board policy, General Municipal Law §805-a(1)(b), and Public Officers Law §105.  During the executive session, the board considered a proposed separation agreement between the district and then-Superintendent Dr. Pamela Brown.  Petitioners allege that respondent was quoted in a "Buffalo Business First" newsletter published on June 16, 2014 stating his opinion that the board was likely to approve the proposed separation agreement against the advice of counsel provided at the June 11, 2014 executive session.  That separation agreement subsequently received board approval by a vote of 7-2, with respondent McCarthy casting one of the two dissenting votes.  In addition to this application, petitioners also filed an appeal with the Buffalo City School District Ethics Committee on June 17, 2014.

Respondent asserts that the verified petition is procedurally defective and may not be considered by the Commissioner as jurisdiction over respondent has not been properly secured.  Respondent claims that he was not personally served with the verified petition, thus service was defective.  Respondent further alleges the petition does not include the necessary notice required for an Education Law §306 removal application. Specifically, respondent claims that petitioners failed to abide by the notice requirements of 8 NYCRR §277.1(b) which, pursuant to Education Law §306, requires that specific notice for removal be given to an officer whose removal is requested.  Respondent contends that petitioners instead provided the notice associated with an appeal to the Commissioner under §310 of the Education Law and 8 NYCRR §275.11(a).  Additionally, respondent alleges that the accusations of misconduct and violations of law contained in the petition are conclusory in nature, not based on fact, and do not rise to a level warranting removal from office under Education Law §306.  Lastly, respondent requests a certificate of good faith pursuant to Education Law §3811.

The application must be denied 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)  I take administrative notice that the official website for the Buffalo Public Schools indicates that respondent no longer serves on the board of education.  Thus, the application for removal is moot, warranting denial (Appeal of Anderson, et.al, 52 Ed Dept Rep, Decision No. 16,438; Application of Lilly, 47 id. 307, Decision No. 15,705).

Even if the application were not dismissed as moot, it would be denied for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations, which is made applicable to removal proceedings by Commissioners regulation §277.1, requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Respondent asserts that he was not personally served with the verified petition, and petitioners' affidavit of service indicates that service was made upon the district clerk.  Service upon the district clerk did not effect personal jurisdiction over respondent, an individual board member, and the application must be denied for lack of personal service upon respondent (Application of Murray, 56 Ed Dept Rep, Decision No. 17,002; Appeal of D.B, 49 id. 336, Decision No. 15,716).

The defective notice of petition also warrants denial of the application.  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioners failed to give such notice and, instead, used the notice prescribed under 8 NCYRR §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 regulation is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Application of Carrion, 50 id. 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 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253; Application of Knapp, 41 id. 41, Decision No. 14,608).

Although the application must be denied on procedural grounds, one administrative matter remains.  Respondent has requested that I issue 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 board member.  It is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Appeal of Berger, 56 id., Decision No. 16,996; Appeal of Fletcher and Ferguson, 55 id., Decision No. 16,901).  In view of the fact that the application here is denied 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(1) that respondent McCarthy is entitled to a certificate of good faith (Application of Wallace, 52 Ed Dept Rep, Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265).

In light of the foregoing disposition, I need not address the parties’ remaining contentions.     

THE APPLICATION IS DENIED.

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