Appeal of BRIAN BUTLER from action of the Board of Education of the Massapequa Union Free School District regarding his removal from office.

Decision No. 17,544

(December 3, 2018)

Law Offices of Douglas A. Spencer, PLLC, attorneys for petitioner, Douglas A. Spencer, Esq., of counsel

Hamburger, Maxson, Yaffe & McNally, LLP, attorneys for respondent, Richard Hamburger, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Massapequa Union Free School District (“respondent” or “board”) to declare his position on the board vacant and to remove him as a board member.  The appeal must be dismissed.

Petitioner was elected to respondent’s board for a three-year term, commencing July 1, 2017.  The record indicates that, initially, petitioner attended respondent’s board meetings, except the meetings held on August 24, September 14, and September 28, 2017, from which petitioner was absent.

The record further indicates that on March 15, 2018, respondent’s president asked all board members to remain for a discussion following the board’s public and executive sessions.  In an affidavit, the board president avers that he requested the meeting “to address with [petitioner], as a Board, [petitioner’s] public Facebook posts calling for the dismissal of the Superintendent and his references to her as ‘Kim Jong Un.’”  The Board president further asserts that he “wanted to discuss with [petitioner] how we could all work together as a team, despite differences in policy, in a respectful and civil way, without name calling and personal attacks.”[1]

All five members of the board attended the meeting; i.e. petitioner, the board president, trustee Baldinger, trustee LaBella, and trustee Fisher (though trustee Fisher left before the meeting ended, as described more fully below).  The record indicates that the meeting quickly became rancorous.

In an affidavit, petitioner asserts that the board president attempted to “silence” him from expressing his views regarding the superintendent.  Petitioner further asserts that Baldinger threatened him by stating, “If I were only 20 years younger, there would be two hits ....”  Petitioner contends that he understood Baldinger’s statement to be a physical threat directed at petitioner in response to his comments regarding the superintendent’s continued employment with the district.

In response to petitioner’s claims, respondent submits affidavits from the board’s president, LaBella, and Baldinger. Each such affiant explicitly disputes petitioner’s assertion that Baldinger threatened petitioner with physical harm.

The board president, in his affidavit, contends that he heard Baldinger say, “If I were 20 years younger ...,” but did not hear the rest of the sentence.  He further contends that he could “clearly see” that Baldinger was facing LaBella when Baldinger made the remark – while petitioner “was standing across the wide conference room table,” away from the conversation.

In his affidavit, LaBella asserts that at no time during the March 15 meeting did Baldinger “raise his voice, pound the table, or do anything else which could reasonably be perceived as intimidating.”  He further contends that he believed the comments made by Baldinger were aimed at him, because he and Baldinger were facing one another, across the room from petitioner.

Baldinger avers in his affidavit that he has never threatened petitioner, or any other trustee, with physical violence.

Trustee Fisher also submits an affidavit describing the events of the March 15 meeting.  In it, she asserts that following the board president’s request for civility, petitioner “became irate, raising his voice and using profanity.”  In response, Fisher contends that she left the meeting, but is unaware of any threat of physical violence made by Baldinger directed at petitioner, or any other trustee, at that meeting or at any other time.

The record indicates that following the March 15 incident, petitioner was absent from the next three board meetings (on April 4, April 12, and April 17, 2018); was present for the next three meetings (on April 26, May 3, and May 15, 2018); and was absent from all subsequent meetings (on May 21, May 24, June 7, June 13, and June 21, 2018), including the June 28 meeting, at which respondent declared petitioner’s seat vacant.  The record further indicates that, in total, petitioner was absent from 11 of the 31 meetings held from the time he was elected until respondent declared his seat vacant.

By letter dated June 22, 2018, the board president offered petitioner an opportunity to attend a special meeting of the board on June 28, 2018 at which petitioner would be asked to provide an explanation for his five most recent consecutive absences.  The letter further stated that if petitioner failed to provide valid or reasonable excuses for his absences, the board would have “no choice” but to declare his seat vacant.

By letter dated June 22, 2018, petitioner replied to the board president’s letter, stating that he would not attend the June 28 meeting because of “a prior business arrangement.”  Petitioner’s letter further stated that petitioner would attend a future meeting of respondent board to explain the reason for his absences, but only if the board president and trustee Baldinger did not attend.  In the alternative, petitioner stated that the letter would serve as an explanation for his absences.

Petitioner further asserted in his letter that he refused “to be in the presence of [trustee] Baldinger who has exhibited an extreme temper on at least two occasions towards sitting board members.”  He stated that he feared for his safety and the safety of others and that, “[u]nless the board takes these accusations seriously and investigates the alleged actions and takes the appropriate actions, I cannot bring myself to sit in the same room as him.”

By letter dated June 29, 2018, respondent’s district clerk notified petitioner that respondent had declared his seat vacant because of his habitual absences and that, effective immediately, he was no longer a board trustee.

Petitioner contends that he provided respondent with a good and valid excuse for his failure to attend board meetings; i.e. fear for his personal safety.  He further contends that the board president did not object to his absences.  Finally, petitioner contends that respondent failed to address the concerns he raised regarding his personal safety; failed to address the concerns he raised regarding fellow trustees’ alleged attempts to silence him; and failed to address the concerns he raised regarding respondent’s alleged violations of the state’s Open Meetings Law.  Accordingly, petitioner asserts that respondent’s decision to declare his seat vacant was arbitrary and capricious and seeks reinstatement to his position on the board.

Respondent asserts that petitioner failed to provide a good and valid excuse to the other trustees for his absence from multiple consecutive board meetings.  As such, respondent contends that the decision to vacate petitioner’s seat on the board was a proper exercise of its authority that should not be disturbed.

Education Law §2109 provides, in pertinent part, that a board member who “refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse therefor to the other trustees vacates his office by refusal to serve.”

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

It is for a board of education to initially determine whether a trustee has rendered a valid excuse for missing board meetings (Appeal of Shader, 31 Ed Dept Rep 252, Decision No. 12,634; Appeal of McLaughlin, 19 id. 584, Decision No. 10,265).  Further, the absences must be excused to the board’s satisfaction (Appeal of Mahoney, 53 Ed Dept Rep, Decision No. 16,605).  Finally, to overturn the board’s determination, petitioner must demonstrate that respondent was arbitrary and capricious or otherwise abused its discretion in determining that petitioner vacated his seat (Appeal of Kaplan, 50 Ed Dept Rep, Decision No. 16,113; Appeal of Dupras, 47 id. 471, Decision No. 15,757).

It is undisputed that petitioner refused or neglected to attend more than three successive board meetings, and that he was duly notified of such meetings.  It is therefore incumbent on petitioner to demonstrate that he rendered a good and valid excuse to the other trustees for his frequent absences from board meetings.  On the record before me, petitioner has failed to meet that burden.

On numerous occasions, petitioner expressed to his fellow board members (and to others) his belief that trustee Baldinger threatened him at the March 15 meeting.  Petitioner also expressed his displeasure with the board’s purported inaction in addressing that incident.  However, the remark petitioner attributes to Baldinger, while clearly inappropriate, appears on its face to be an expression of anger rather than an imminent threat of physical attack.  Petitioner’s subsequent behavior undercuts his contention that the remark was so egregious that he was afraid to attend board meetings for many months thereafter.  The record does not establish that petitioner was too afraid to attend subsequent board meetings out of fear for his physical safety.  In fact, the record indicates that petitioner attended board meetings on May 3, 2018 and May 15, 2018 at which Baldinger was also present, and there is no proof that any threatening behavior occurred at those meetings.  The record further indicates that petitioner first raised his purported fear for his physical safety as an excuse for his absences in his June 22, 2018 letter to the board, as the board was considering vacating his seat.

A review of petitioner’s actions following the March 15 incident belie his post hoc assertion that he did not attend subsequent meetings out of a sense of fear for his personal safety.

Petitioner was absent from the three meetings that followed the March 15 incident; i.e. the meetings held on April 4, April 12, and April 17, 2018.  With regard to his absence from the April 4 meeting, petitioner sent the following text message to the board president, “I will not be there as I will be in California.  Just explain to everyone in attendance that there will be A LOT of litigation following this.  And it would be smart for everyone to use their brain if they are going to maliciously defame me, board members included.  I will be suing everyone who defames me for defamation personally.”

Additionally, with regard to the April 4 meeting, petitioner avers in his affidavit: “Unfortunately I was unable to attend as I was in California, outside the jurisdiction.  I advised [the board president] of my unavailability prior to said meeting who noted no objection to either my unavailability or my rationale for the same (emphasis added).”

Petitioner attended two successive board meetings, on May 3 and May 15, 2018, further belying his assertion that he was too afraid to attend.  Petitioner also attended the prior board meeting on April 26, 2018, but he asserts that he attended the April 26 meeting because he understood that trustee Baldinger would be absent from that meeting.  The board minutes for the April 26 meeting confirm that Baldinger did not attend that meeting.

Petitioner was absent from all subsequent meetings; i.e. on May 21, May 24, June 7, June 13, and June 21, 2018, and declined to attend the June 28 meeting at which he was offered an opportunity to explain his absences to his fellow trustees.

There is no evidence that petitioner ever sought any additional security measures or other accommodations so that he could attend meetings safely – other than to assert that he would not attend any meetings at which trustee Baldinger was present.

On this record, petitioner has not met his burden of proving that he had a valid excuse for failing to attend the five consecutive board meetings between May 21 and June 21, 2018.[2]  Petitioner has not demonstrated that respondent’s rejection of his proffered excuse - his purported fear of physical harm arising out of a single remark by a fellow trustee made in a heated discussion on March 15, 2018 - was arbitrary and capricious or an abuse of discretion.

Therefore, based on the record before me, I cannot conclude that respondent's decision to declare petitioner’s

position on the board vacant pursuant to Education Law §2109 and to remove him as a board member was arbitrary, capricious or an abuse of its discretion.

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

THE APPEAL IS DISMISSED.

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