Application of WILLIAM KING MOSS III for the removal of Richard Loeschner as superintendent and Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod, and Cynthia Ciferri as trustees of the Board of Education of the Brentwood Union Free School District and appeal from action of the Board of Education of the Brentwood Union Free School District regarding the expenditure of district funds.

Decision No. 17,956

(January 6, 2021)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Candace J. Gomez, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner seeks the removal of superintendent Richard Loeschner (“superintendent”) and Robert Feliciano, G. Paula Moore, Eileen Felix, Julia Burgos, Simone Holder-Daniel, Maria Gonzalez-Prescod, and Cynthia Ciferri as trustees (“trustees”) of the Board of Education of the Brentwood Union Free School District (“board”) (collectively, “respondents”) and appeals from action of the board approving the defense and indemnification of district officers in connection with prior appeals under Education Law §310 and applications for removal under Education Law §306.  The application must be denied and the appeal must be dismissed.

Petitioner has brought several prior appeals and applications against various officers of respondents’ district (see e.g. Appeal of Moss, 59 Ed Dept Rep, Decision No. 17,861; Application and Appeal of Moss, 58 id., Decision No. 17,602).  As relevant here, between March 2018 and December 2019, the board voted to provide defense and indemnification to district officers in four such prior appeals.  This appeal and application ensued.  Petitioner’s request for interim relief was denied on January 24, 2020. 

Petitioner argues that respondents improperly authorized the defense and indemnification of “individuals who do not possess certificates of good faith.”  Petitioner further avers that indemnification was improper because the indemnified officers failed to notify the board of the commencement of the proceedings against them within five days as required by Education Law §3811(1).  For relief, petitioner seeks an order directing respondents “to follow all District Policies, New York State Laws and Commissioner Regulations pertaining to the payment of attorneys for legal defenses in court proceedings or proceedings before [the] Commissioner of Education.”  Petitioner further seeks an order directing the board and superintendent “to only compensate attorneys for individual officer defenses after receiving a certificate of good faith from the Commissioner of Education or a court.”  Finally, petitioner requests removal of the superintendent and trustees from office.

Respondents argue that the instant appeal and application are untimely to the extent that they challenge the board’s defense and indemnification of district officers in several of the prior appeals at issue here.  On the merits, respondents argue that they properly approved the defense and indemnification of district officers pursuant to Public Officers Law §18 and Education Law §3811.

The appeal must be dismissed, in part, 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of P.P., 57 Ed Dept Rep, Decision No. 17,321; Application of Kelty, 48 id. 476, Decision No. 15,921).  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 P.P., 57 Ed Dept Rep, Decision No. 17,321; Application of Nett and Raby, 45 id. 259, Decision No. 15,315).

The board voted to authorize defense and indemnification in the four appeals at issue here during public meetings on March 20, 2018; October 21, 2019; May 8, 2019; and December 19, 2019, respectively.  Because the March 20, 2018, October 21, 2019 and May 8, 2019 votes occurred more than 30 days before petitioner commenced the instant proceeding, his claims concerning those votes and the provision of defense and indemnification with regard to those appeals are untimely.

In his reply, petitioner argues that he did not learn of the board’s actions until December 19, 2019; however, the challenged votes occurred during public meetings of the board, which provided the requisite notice (see Appeal of Williams, 48 Ed Dept Rep 343, Decision No. 15,879; Appeal of Lawson, 33 id. 427, Decision No. 13,102).  Petitioner does not allege or establish that he was unable to discover, in good faith, the facts underlying his claims within 30 days of the challenged actions (Appeal of Affronti, 54 Ed Dept Rep, Decision No. 16,756; Application of Paladino, 53 id., Decision No. 16,594).  Therefore, although petitioner timely commenced this proceeding within 30 days of the board’s December 19, 2019 vote, his challenges to the three earlier votes must be dismissed as untimely.

Turning to the merits of petitioner’s remaining challenge to the December 19, 2019 vote authorizing the defense and indemnification of district officers in two prior appeals commenced by petitioner, 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 asserts that the board’s defense and indemnification of district officers in the prior appeals was erroneous because:  (1) the indemnified officers failed to provide the board with notice in writing of the commencement of the appeal against them within five days of service of the petition; and (2) the indemnified officers did not receive certificates of good faith from the Commissioner of Education.  Respondents counter that the indemnified officers timely requested defense and indemnification and that Public Officers Law §18 does not require the issuance of a certificate of good faith prior to defense and indemnification.

Education Law §3811 requires a board of education to defend and indemnify school board members, officers and employees if:  (1) they notify the board in writing of the commencement of an action or proceeding against them within five days after service of process; (2) the action or proceeding arises out of the exercise of their powers or the performance of their duties; and (3) a court or the Commissioner, as the case may be, certifies that they appeared to act in good faith with respect to the exercise of their powers or the performance of their duties.

Public Officers Law §18(3), meanwhile, provides for defense and indemnification in any civil action or proceeding arising out of any alleged act or omission which occurred or allegedly occurred while a public employee was acting within the scope of his or her employment or duties, so long as he or she:  (1) provides a written request for defense along with copies of the relevant pleadings within 10 days of service of such pleadings upon the employee; and (2) cooperates fully in his or her defense (Public Officers Law §18[5]).  The duty to indemnify under this statute does not arise where “the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee” (Public Officers Law §18[4][b]).  Public Officers Law §18 contains no requirement that a public employee obtain a certificate of good faith to avail him or herself of its protections.

Once adopted by a public entity, Public Officers Law §18 normally becomes the exclusive source of a public employee’s defense and indemnification rights, unless the governing body of such public entity has “provided that [the] benefits [of Public Officers Law §18] shall supplement, or be in addition to, defense or indemnification protection conferred by another enactment” (Public Officers Law §18[12]; Matter of Scimeca v. Brentwood Union Free Sch. Dist., 140 AD3d 1174, 1175 [2d Dept 2016]; Appeal of Carmand and White, 54 Ed Dept Rep, Decision No. 16,689; Appeal of Percy and Ross, 31 id. 199, Decision No. 12,619). 

Here, the board has adopted board policy 6540, which “recognizes” the board’s duty to defend and indemnify district officers under Education Law §3811 and additionally “confers” upon district officers the benefits of Public Officers Law §18.  Accordingly, petitioner’s argument that Education Law §3811 is the only vehicle for the board to authorize the defense and indemnification of district officers is misguided.  Moreover, respondents have submitted proof that the officers indemnified by the board’s December 19, 2019 resolution timely requested defense and indemnification pursuant to both Public Officers Law §18 and Education Law §3811.  Notably, petitioner does not argue that defense and indemnification under Public Officers Law §18 was unwarranted; i.e., that the alleged acts or omissions of the indemnified officers occurred outside the scope of their duties or that the officers engaged in intentional wrongdoing or recklessness.

Instead, petitioner argues that defense and indemnification was improper because the indemnified officers did not obtain certificates of good faith.  However, as indicated above, such certification is not required pursuant to Public Officers Law §18.  Accordingly, petitioner has failed to prove that any aspect of the board’s December 19, 2019 vote to approve the defense and indemnification of district officers was unwarranted or improper under Public Officers Law §18.  

Additionally, with respect to Education Law §3811, I take official notice of the record of the two appeal files that were the subject of the December 19, 2019 resolution (Appeal of Moss, Appeal No. 21,296; Appeal of Moss, Appeal No. 21,356; see 8 NYCRR §276.6).  In those appeals, respondents requested that the Commissioner certify, pursuant to Education Law §3811, that they acted in good faith.  Such certification is solely for the purpose of authorizing the board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or the performance of his or her duties.  “[I]t is reasonable for the issue of good faith to be determined in the same proceeding” for which defense and indemnification is sought (Matter of Matyas v. Board of Educ., Chenango Forks Cent. School Dist., 19 Misc.3d 906, 908 [Sup Ct, Broome County 2008], rev’d on other grounds 63 AD3d 1273 [3d Dept 2009]; see generally Application of the Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147; Application of Valentin, 56 id., Decision No. 17,014; Application of Destino, 52 id., Decision No. 16,461).  Accordingly, I find that respondents complied with Education Law §3811 by seeking certificates of good faith in the underlying appeals.

Given the above conclusions, petitioners’ application for removal must be denied.  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 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 Gates, 57 Ed Dept Rep, Decision No. 17,264; Application of Kolbmann, 48 id. 370, Decision No. 15,888).  As indicated above, petitioner has not proven a violation of Education Law §3811 or any other act pertaining to common schools, let alone a willful violation of such laws.  Accordingly, the application for removal must be denied (see Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253).

As in the appeals that were the subject of the December 19, 2019 resolution, respondents request that I issue the superintendent and trustees certificates of good faith pursuant to Education Law §3811(1) in this proceeding.  As noted above, such certification is solely for the purpose of authorizing the board to indemnify district officers for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of their duties.  It is appropriate to issue such certification unless it is established on the record that the requesting officer 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).  Because there has been no finding that any respondents acted in bad faith in this appeal or the prior appeals, I hereby certify solely for the purpose of Education Law §3811(1) that the superintendent and trustees are entitled to certificates of good faith in this proceeding, Appeal No. 21,296, and Appeal No. 21,356 (Application of Wallace, 52 Ed Dept Rep, Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265).

Finally, I am compelled to comment on the multiplicity of appeals and applications filed by petitioner over a short period of time.  In addition to the instant appeal and application and the four others described herein, petitioner has filed several other appeals and applications against officers and employees of respondents’ district in the past two years.  While these appeals generally concern unique allegations of wrongdoing, the instant appeal complains only of the board’s defense and indemnification of district officers against petitioner’s prior appeals.  This has the potential to create an unending cycle of administrative proceedings, whereby respondents’ actions to defend themselves give rise to additional appeals and attendant costs.

Although petitioner retains a right to commence proceedings under Education Law §310 and Education Law §306, I caution petitioner that such proceedings should not be used to harass school district officers or employees.  Additionally, I remind petitioner that he bears the burden of proving any alleged wrongdoing and that an appeal pursuant to Education Law §310 or an application for removal under Education Law §306 will not succeed on bald assertions alone.

THE APPLICATION IS DENIED AND THE APPEAL IS DISMISSED.

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