Application of DR. JENNIFER ERACA for the removal of Mark Tornatore and Peter Bodnar as members of the Board of Education of the Arlington Central School District.

Decision No. 17,977

(March 29, 2021)

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

ROSA., Commissioner.--Petitioner seeks the removal of Mark Tornatore (“respondent Tornatore”) and Peter Bodnar (“respondent Bodnar”) (collectively, “respondents”) as members of the Board of Education of the Arlington Central School District (“board”).  The application must be denied. 

At the time of the events giving rise to this application, petitioner, respondent Bodnar, and respondent Tornatore served as members of the board; respondent Bodnar served as president[1]  On May 26, 2020, during a public meeting of the board, respondent Tornatore held up a campaign postcard from the Arlington Teachers’ Association (“ATA”), which endorsed specific candidates running for seats on the board in the upcoming June 2020 election, including respondent Bodnar, and encouraged constituents to vote “Yes” for the budget.  As respondent Tornatore held up the postcard, he stated, “just an FYI ... the Teachers Association ... there’s their card ... they are pushing our budget so I’d like to thank them for that.” 

Later that evening, in an email to respondents Tornatore and Bodnar, petitioner alleged that respondent Tornatore’s actions were “inappropriate and disrespectful.”  Respondent Bodnar responded that he “agree[d] with [petitioner]” and that, although he did not “believe there was malice in this act, [he] would ask that in the future [b]oard [m]embers refrain from this type of action.”  Respondent Tornatore apologized, explaining that he “meant no offense” and merely sought to “show[] how the ATA was supporting [the board’s] budget.”

By email dated June 19, 2020 – sent to the board and copied to the superintendent – petitioner requested that respondent Bodnar ask the district’s legal counsel about “the legality of a board member sharing a union postcard endorsing the budget as well as particular candidates.”  Respondent Bodnar responded that he would speak to the district’s counsel and “let [petitioner and the other board members] know his response.”  In an email dated June 19, 2020, the district’s counsel advised the board that, as “the budget vote and candidate elections [had] just concluded and any legal advice ... could be significant in terms of potential litigation,” he would only answer questions posed to him “by a quorum of the [b]oard.”

By email dated June 21, 2020 – sent to the board, the superintendent, and the district’s counsel – petitioner indicated that she “would like an executive session” held at the board’s upcoming June 23, 2020 meeting, “to discuss what occurred.”  Petitioner also raised her request for an executive session during the June 23 meeting.  Respondent Bodnar indicated that the board would “discuss it after the board meeting” on July 1, 2020.

By email dated June 25, 2020, the superintendent advised the board that, pursuant to petitioner’s request and board policy 1520, which permits any board member to call for a special meeting, he was “scheduling a special meeting” for June 29, 2020, for the “sole purpose” of adjourning to executive session and “receiving legal advice from the [d]istrict’s attorney.”  By email dated June 26, 2020, however, the superintendent indicated that the meeting could not be held because a quorum of the board was not available to attend.[2]  There is no evidence in the record that respondent Tornatore’s conduct at the May 26, 2020 meeting was discussed at any subsequent board meeting.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 9, 2020. 

Petitioner seeks the removal of respondent Tornatore for his actions at the May 26, 2020 board meeting; namely, displaying the ATA voter postcard and making the aforementioned statement.  Petitioner also seeks the removal of respondent Bodnar for his alleged failure to hold an executive session to address respondent Tornatore’s conduct.  Petitioner alleges that the actions or inactions of respondents Bodnar and Tornatore violated board policy and the prohibition on electoral advocacy described in Matter of Phillips v. Maurer (67 NY2d 672 [1986]).

Respondents argue that the application must be denied as untimely.  On the merits, respondents argue that their alleged conduct does not rise to the level required to remove a board member from office under Education Law §306.

The application must be denied 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). 

Here, petitioner seeks respondent Tornatore’s removal on the grounds of his conduct at the May 26, 2020 board meeting; however, petitioner did not serve the petition and notice of petition upon respondent Tornatore until September 25, 2020 – more than 120 days later.  Accordingly, this proceeding is untimely with respect to respondent Tornatore.  Petitioner also complains of respondent Bodnar’s alleged failure to hold an executive session or otherwise address respondent Tornatore’s conduct at the May 26, 2020 meeting.  Specifically, petitioner asserts that respondent Bodnar “did not act to address” respondent Tornatore’s conduct during the board’s June 23, July 1, or July 13,[3] 2020 meetings.[4]  Petitioner did not serve the petition and notice of petition upon respondent Bodnar until September 26, 2020.  Therefore, even assuming the date most favorable to petitioner, petitioner commenced this proceeding against respondent Bodnar more than 70 days after his last alleged failure to act.  Petitioner’s claims, therefore, are facially untimely with respect to both respondents.

Petitioner nevertheless asserts that she has demonstrated good cause for the delay because she was awaiting the district’s responses to her requests for records under the Freedom of Information Law (“FOIL”).  The record reflects that petitioner submitted three separate FOIL requests to the district:

• On July 1, 2020, petitioner requested “BOE email correspondence” from May 26 to June 30, 2020;
• On July 6, 2020, petitioner made a similar request for “BOE email correspondence” from May 26 through 27 as well as June 13 through30, 2020; and
• On July 21, 2020, petitioner requested records from a 2015 disciplinary hearing under Education Law §3020-a, involving an individual who is not a party to this proceeding.

The record reflects that petitioner received the district’s responses to these requests on September 8, 2020.

On this record, petitioner has failed to explain why her requests for these records justified her delay in commencing the instant application.  With respect to the first two FOIL requests, I note that, although some of the emails are relevant to petitioner’s allegations, petitioner was either the sender or a recipient of each of these emails.  Therefore, petitioner was aware of the content of these emails – the latest of which is dated June 30, 2020 – at the time they were sent.  It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring a proceeding (see Appeal of N.M., 59 Ed Dept Rep, Decision No. 17,688; Appeal of Cea, 58 id., Decision No. 17,483; Appeal of O’Brien, 51 id., Decision No. 16,316, petition dismissed Matter of O’Brien v. New York State Commr. of Educ. [July 3, 2012], affd 112 AD3d 188 [3d Dept. 2013], app dismissed 22 NY3d 1125 [2014], mot for lv denied 23 NY3d 903 [2014]; cert denied 574 US 959 [2014]).  As such, I do not find that the district’s subsequent production of these emails via FOIL constitutes good cause for the delay in commencing this application.

The third FOIL request pertains to a disciplinary decision concerning an individual who, according to petitioner, has a “close relationship” with respondent Tornatore.  Petitioner, however, does not explain how this relationship is relevant to the allegations in the instant application.  Therefore, I cannot find that petitioner’s awaited receipt of the disciplinary decision constituted good cause for her delay in commencing this application (8 NYCRR §275.16).

Additionally, the continuing wrong doctrine does not apply to the allegations herein.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action that results in a continuous violation of the law, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single discrete action, inaction or decision and the resulting effects are continuing but are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).

Here, petitioner challenges a discrete action by respondent Tornatore, which occurred on May 26, 2020, and petitioner has neither alleged nor established that respondent Tornatore’s action had any ongoing effects.  While petitioner complains that respondent Bodnar failed to address respondent Tornatore’s conduct in an executive session at some point thereafter, petitioner has not explained how such inaction is intrinsically unlawful.  Petitioner merely cites to respondent’s policy concerning executive sessions, which provides, in relevant part, that the board “may conduct an executive session” to discuss certain specified confidential matters;[5] however, nothing in this policy suggests that either the board or respondent Bodnar, specifically, was required to convene an executive session to discuss respondent Tornatore’s conduct at the May 26, 2020 meeting.  As such, respondent Bodnar’s inaction is not intrinsically unlawful, and the continuing wrong doctrine does not apply (see Application of Paladino, 53 Ed Dept Rep, Decision No. 16,594).[6]

While the application must be denied as untimely, I remind respondents that, although a board of education may disseminate information “reasonably necessary” to educate and inform voters, it may not use district resources to distribute materials designed to “exhort the electorate to cast their ballots in support of a particular position advocated by the board” (Matter of Phillips v. Maurer, 67 NY2d 672, 674 [1986]; Appeal of Herloski, 57 Ed Dept Rep, Decision No. 17,361; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).

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

THE APPLICATION IS DENIED.

END OF FILE