Appeal of DOUGLAS S. ADAMS from action of the Board of Education of the Suffern Central School District and its members Amany Messieha Dgheim, Angus MacKenzie, Donald Cairns, Tom Donnelly, Matthew Kern, Melissa Reimer, and Paul Shapiro regarding resolutions and meetings of the board and application for the removal of Amany Messieha Dgheim as president and member of the board.

Decision No. 17,803

(December 9, 2019)

Balsamo, Byrne, Cipriani & Ellsworth, attorneys for petitioner, Richard M. Ellsworth, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

TAHOE., Acting Commissioner.--Petitioner challenges actions of the Board of Education of the Suffern Central School District (“board”) and its members Amany Messieha Dgheim, Angus MacKenzie, Donald Cairns, Tom Donnelly, Matthew Kern, Melissa Reimer, and Paul Shapiro (collectively, “respondents”) concerning certain resolutions and meetings of the board.  Petitioner additionally seeks the removal of respondent Dgheim as president and member of the board.  The appeal must be dismissed and the application denied.

At all times relevant to this appeal, petitioner was the superintendent of the Suffern Central School District.  As relevant here, the board voted at a February 5, 2019 meeting to appoint a special engagement auditor to complete an analysis of the costs and implications of a four-year contract between the district and the local teachers’ association, which the board had previously approved in November 2018.  During the February 5 meeting, petitioner sought to speak while the board deliberated the appointment of the special engagement auditor; however, respondent Dgheim – then president of the board – advised petitioner that he could not speak during deliberations and instead would be permitted to speak only during those portions of the meeting set aside for his comments as superintendent, which occurred before and after deliberations.

Also, during the February 5, 2019 meeting, the board voted to authorize the district’s “school business official” to execute a consultant services agreement with the Putnam Northern Westchester Board of Cooperative Educational Services (“BOCES”) regarding an audit of district employees’ emails.  The agreement was apparently not executed pursuant to this February 5 resolution, however, and the board subsequently convened a special meeting on February 25, 2019, at which it voted to “authorize[] the [b]oard ... [p]resident and ... direct[] the [d]istrict’s [b]usiness [o]fficial to sign” the consultant services agreement by February 26, 2019.  Petitioner was not present for the board’s February 25 meeting.  It is unclear from the record whether the consultant services agreement with BOCES was in fact executed by February 26 pursuant to the board’s resolution.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 28, 2019.

Petitioner argues that respondents violated Education Law §1711 and board policy by, among other things, restricting his participation during deliberations regarding the appointment of the special engagement auditor at the February 5, 2019 board meeting; usurping his responsibility for recommending professional service providers such as the special engagement auditor; modifying the agenda for the February 5, 2019 meeting with respect to the appointment of the special engagement auditor; and executing the consultant services agreement with BOCES without his authorization.  For relief, petitioner seeks an order directing respondents and all future boards to permit him

to participate in all [board] deliberations; ... to advise and inform the [board] on items requiring [board] action; ... to recommend action before the [board] attempts to make a decision; ... to recommend [action] regarding the contracting for professional services; [and] to prepare the meeting agenda [for board meetings] without unilateral modification by the [board] or [its] [p]resident.

Petitioner additionally seeks an order removing respondent Dgheim as president and member of the board as well as an order nullifying the board’s February 5, 2019 resolution appointing the special engagement auditor and its February 5 and 25, 2019 resolutions permitting the board to enter the consultant services agreement with BOCES.[1]

Respondents assert that the petition should be dismissed in its entirety because petitioner fails to establish a clear legal right to the relief sought and has not satisfied the requirements of Education Law §306 and section 277.1(b) of the Commissioner’s regulations with respect to his request for respondent Dgheim’s removal.  In their memorandum of law, respondents additionally object to the contents of petitioner’s reply.

First, I must address several procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

To the extent that petitioner seeks respondent Dgheim’s removal as board president, the application must be denied for failure to include proper notice.  Petitioner did not comply with the specialized notice requirements for removal applications pursuant to section 277.1(b) of the Commissioner’s regulations (Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,482; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  Because the notice of petition serves to alert a party to the fact that he or she is the subject of removal proceedings, a notice of petition that fails to contain the required language is fatally defective and does not secure jurisdiction over the respondent (Appeal of D.B., 58 Ed Dept Rep, Decision No. 17,449; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  Thus, to the extent that petitioner seeks Dgheim’s removal in this appeal, such application for removal must be denied for failure to comply with section 277.1(b) of the Commissioner's regulations (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

In any event, I note that petitioner’s request for Dgheim’s removal from the board has been rendered 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).

As set forth more fully in my decision regarding petitioner’s separate application for respondent Dgheim’s removal pursuant to Education Law §306 (Application of Adams, 59 Ed Dept Rep, Decision No. 17787), Dgheim’s term as president and member of the board ended on June 30, 2019, and she did not seek re-election.  Accordingly, because Dgheim no longer serves on the board, petitioner’s request that I remove Dgheim as president and member of the board is moot (Application of the Board of Education of the Beekmantown Central School District, 59 Ed Dept Rep, Decision No. 17,718; Appeal of Parrino, 53 id., Decision No. 16,547; Application of the Board of Education of the Lake George Central School District, 52 id., Decision No. 16,467).

Likewise, petitioner’s claims and request for relief concerning the February 5, 2018 resolution appointing the special engagement auditor are also moot.  Respondents submit an affidavit of respondent Dgheim in which she indicates that the board “has not secured the services of a special engagement auditor, because the sole candidate who was voted on at the February 5, 2019 meeting withdrew his application....”  Petitioner fails to address or refute respondents’ claim.  Accordingly, the board’s February 5 resolution to appoint the special engagement auditor currently has no force or effect.  Therefore, to the extent that petitioner seeks an order nullifying the February 5, 2019 resolution to appoint the special engagement auditor, the petition is moot and must be dismissed.

To the extent that petitioner requests an order directing respondents and all future boards to permit him to participate in board deliberations, to advise and inform the board, to recommend action to the board, and to prepare agendas for board meetings, this claim must be dismissed because it seeks declaratory relief.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).[2]

Turning to the merits, petitioner’s sole remaining request for relief seeks an order nullifying the board’s February 5 and 25, 2019 resolutions regarding the district’s consultant services agreement with BOCES.  Petitioner alleges that these resolutions are improper because the board lacks authority to enter into a consultant services agreement or direct the district’s business official to execute such an agreement absent petitioner’s consent as superintendent.  Specifically, petitioner contends that the resolutions violate Education Law §1711 insofar as this statute “charges the [s]uperintendent with the responsibilities of the chief executive officer of the school district.”  He further avers that the resolutions are “a violation of board policy.”

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).

Petitioner fails to establish that respondents abused their discretion or acted arbitrarily and capriciously by passing the February 5 and 25, 2019 resolutions regarding the consultant services agreement.  Although petitioner objects that he was not permitted to “comment [on], discuss or deliberate” the February 5 and 25, 2019 resolutions concerning the consultant services agreement, he also asserts that he does “not object to [the] retention of the services” therein.  Indeed, petitioner submits with his reply a February 25, 2019 memorandum that he wrote to the board, wherein he posited that “[t]he company listed within the [consultant services agreement] appear[ed] to be well suited to ... meet [the district’s] needs.”  In addition, he expressly “recommend[ed] that the [b]oard authorize [him] to execute” the consultant services agreement with BOCES.  Therefore, because petitioner consents to the consultant services agreement and indicates that he would execute the agreement himself as superintendent if given the opportunity to do so, I find that petitioner’s request that I nullify the February 5 and 25, 2019 resolutions authorizing the board to enter into the consultant services agreement is academic insofar as it would not provide any meaningful relief.  Thus, for the reasons above, the petition must be dismissed in its entirety.

Finally, I admonish the parties to resolve their disputes civilly and to comport themselves with professionalism and decorum consistent with the district’s best interests.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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