Appeal of DOUGLAS J. RIVERS from action of the Board of Education of the Rush-Henrietta Central School District regarding his removal from office.

Decision No. 17,989

(May 7, 2021)

The Zoghlin Group, PLLC, attorneys for petitioner, Bridget O’Toole, Esq., of counsel

Ferrara Fiorenza PC, attorneys for respondent, Jennifer E. Mathews, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Rush-Henrietta Central School District (“respondent” or the “board”) to remove him as a board member on the ground of official misconduct.  The appeal must be sustained.

Petitioner was first appointed to the board to fill a vacancy in December 2019.  Petitioner subsequently, and successfully, ran for an open position on the board in the district’s May 2020 election, in which he was elected to a term that expires in May 2023.

As relevant here, the Town of Henrietta typically hosts a summer youth program (the “summer camp”) at town-owned facilities; however, the town was unable to do so in 2020 due to the COVID-19 pandemic and its attendant restrictions.  The record reflects that the town approached the school district in spring 2020 about using the district’s facilities to host the summer camp instead.

On June 9, 2020, the board held a meeting.  At the beginning of the meeting, board member James O’Brien moved, seconded by board member Nichole LaPlaca, to enter executive session.  Although the board did not articulate any reason for the executive session on the record,[1] the board’s agenda indicated that the purpose was “to discuss the school attorney evaluation and contract, school district clerk evaluation and reappointment, exempt salary recommendations, and the superintendent’s year-end evaluation (Parts I and II).”  The minutes for the June 9, 2020 meeting contain a similar notation.  The parties agree that, during the executive session portion of the June 9, 2020 board meeting, the superintendent informed the board of the town’s request and his decision not to permit the use of district property to host the summer camp.

Shortly after the conclusion of the June 9, 2020 meeting, petitioner telephoned Stephen Schultz, the town supervisor.  According to petitioner, he informed Mr. Schultz during this call that “there[] [had] been a decision made about the summer [camp]” and that he thought it was “important that [Mr. Schultz] contact [the superintendent] to improve the dialogue.”

Later that evening, Mr. Schultz emailed the superintendent, indicating his disappointment that the board had “vot[ed] tonight to disallow [the summer] camp.”  He asked the superintendent to “[p]lease let [him] know as soon as possible whether the [summer] camp [was] dead or still ha[d] a chance.”

Mr. Schultz and the superintendent thereafter corresponded by email.  The superintendent stated that the board had discussed the town’s request to host the summer camp in executive session due to “liability issues,” and that he would “not be recommending [b]oard approval of any non-essential summer programming,” including the summer camp.

The board subsequently learned that petitioner had informed Mr. Schultz that the school district would not host the summer camp.  Petitioner admitted that he had provided this information to Mr. Schultz and apologized.

The board adopted a resolution on July 7, 2020, charging petitioner with the following misconduct:

On or about June 9, 2020, [petitioner], while a duly appointed and serving member of the [b]oard ... did commit an act of official misconduct in that he did wrongfully divulge confidential information presented in executive session concerning staffing and liability issues related to the requested use of [d]istrict facilities by a third party, such conduct being in violation of law and his oath of office.

The board convened a hearing on July 21, 2020, where it heard evidence and testimony concerning petitioner’s conduct.

At an August 11, 2020 board meeting, the board voted 6-1 to remove petitioner from office.  Petitioner thereafter commenced a hybrid Civil Practice Law & Rules (“CPLR”) article 78/declaratory judgment action against the board and the district, seeking:  (1) a declaration that the board’s discussion of the summer camp in executive session violated the Open Meetings Law; (2) an order annulling and vacating the board’s decision to remove him from office; and (3) “reinstate[ment] ... to his elected position.”

On January 29, 2021, Supreme Court, Monroe County, issued a decision, order, and judgment declaring that the respondents had “violated the Open Meetings Law on June 9, 2020” and dismissing so much of the hybrid proceeding/action as sought relief pursuant to CPLR article 78.  With respect to petitioner’s Open Meetings Law claim, the court found

no material dispute that [the] [r]espondents violated Public Officer’s [sic] Law sections 105 and 106 by failing to state prior to entering executive session that it planned to discuss – and thereafter in fact discussed – whether to allow the [t]own to use school facilities for [the] summer camp.

The court further found that the board did not “take minutes during executive session” or “subsequently ... release minutes of the session within one week.”  Thus, the court granted summary judgment to petitioner “insofar as he [sought] a declaration that [the board] violated the Open Meetings Law as alleged in the petition/complaint.”  The court also observed, with respect to this violation, that “there [was] nothing to annul or declare void ... [a]s the June 9, 2020 executive session itself resulted in no action.”

With respect to petitioner’s remaining requests for relief, the court granted the respondents’ motion to dismiss these claims because, under the doctrine of primary jurisdiction, such claims were more appropriately addressed by the Commissioner of Education (see generally In re Arb. Between Alden Cent. Sch. Dist. & Alden Cent. Sch. Administrators’ Ass’n, 115 AD3d 1340, 1341, [4th Dept 2014]).  This appeal ensued.

Petitioner contends that he did not engage in “official misconduct” given Supreme Court’s determination that the June 9, 2020 executive session violated the Open Meetings Law.  Petitioner further argues that the board improperly voted to remove him from office for reasons other than official misconduct.  Petitioner stresses that he did not divulge the information from the June 9, 2020 meeting “intentionally [or] with a wrongful purpose” and argues that the information he shared was not “confidential.”  Petitioner seeks an order vacating the board’s decision to remove him and restoring him to his elected position.

Respondent contends that petitioner has failed to prove either that it improperly found him guilty of official misconduct for disclosing information discussed at the June 9, 2020 executive session or that it improperly removed him from office on the grounds of such misconduct.  Respondent argues that petitioner’s disclosure of such information was prohibited by General Municipal Law § 805-a and board policy. 

Pursuant to New York State’s Open Meetings Law (see Public Officers Law § 101), every meeting of a board of education “shall be open to the general public” (Public Officers Law § 103; see Public Officers Law § 102 [2]; General Construction Law § 66 [1], [2]).  During such public meeting, a board of education may vote to “conduct an executive session for [one of eight] enumerated purposes only,” which include, among other things, “matters which may imperil the public safety if disclosed”; “discussions regarding proposed, pending or current litigation”; and matters relating to the employment of “a particular person” (Public Officers Law § 105).  Although Public Officers Law § 107 vests exclusive jurisdiction over alleged violations of the Open Meetings Law in the Supreme Court of the State of New York (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928; see also Dombroske v. Bd. of Educ. of the West Genesee Cent. School Dist., 118 Misc.2d 800, 801 [Sup Ct, Onondaga County 1983] [“The commissioner ... has ruled and properly so that he has no authority to declare void any action taken in violation of the Open Meetings Law, and that such a declaration must be sought in court by an Article 78 proceeding”]), the Commissioner has recognized that a board of education may enter into an executive session for only those purposes set forth in Public Officers Law § 105 (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Matter of Leber, 19 id. 519, Decision No. 10,235).

General Municipal Law § 805-a (1) (b) provides that no municipal officer or employee – including a school board member – shall “disclose confidential information acquired by him [or her] in the course of his [or her] official duties or use such information to further his [or her] personal interests.”  As New York courts have recognized, the Commissioner of Education has the authority to define the meaning of the word “confidential” within the public school system (see Matter of Paladino v Board of Educ. for the City of Buffalo Pub. Sch. Dist., 183 AD3d 1043, 1049 [3d Dept 2020]; Komyathy v Board of Educ. of Wappinger Cent. School Dist. No. 1, 75 Misc 2d 859, 869 [Sup Ct, Dutchess County 1973]).  The Commissioner has defined “confidential” as encompassing “[i]nformation that is meant to be kept secret” (see generally Appeal of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315, citing Black’s Law Dictionary [8th Ed. 2004]).

Pursuant to Education Law § 1709 (18), which is made applicable to central school districts by Education Law §§ 1804 (1) and 1805, a board of education has the power “[t]o remove any member of their board for official misconduct.”   To constitute grounds for removal pursuant to Education Law § 1709 (18), the “official misconduct” must clearly relate to a board member’s official duties, either because of the alleged unauthorized exercise of the member’s powers or the intentional failure to exercise those powers to the detriment of the school district (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785; Appeal of Balen, 40 id. 479, Decision No. 14,532; Appeal of Cox, 27 id. 353, Decision No. 11,973).  In the context of removal proceedings, it is well-settled that a board member’s disclosure of confidential information obtained at a properly-convened executive session violates General Municipal Law § 805-a (1) (b) and, therefore, may constitute grounds for a board member’s removal from office (see Application of the Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147, affd Matter of Paladino v Board of Educ. for the  City of Buffalo Pub. Sch. Dist., 183 AD3d 1043 [3d Dept 2020]; Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Applications of Balen, 40 id. 250, Decision No. 14,474).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

As an initial matter, I agree with respondent that matters discussed in executive session are generally intended to be kept secret and, therefore, confidential within the meaning of General Municipal Law § 805-a.  As prior decisions of the Commissioner have recognized, the purpose of executive session is to permit board members to have full and frank discussions involving one or more of the eight statutory exceptions identified in Public Officers Law § 105.  To hold otherwise would “would allow each individual school board member to decide what information is confidential, and whether it should be released to the public” (Application of the Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147; affd Matter of Paladino v Board of Educ. for the City of Buffalo Pub. Sch. Dist., 183 AD3d 1043 [3d Dept 2020]).

Nevertheless, on this record, I find that the superintendent’s decision regarding the summer camp was not “confidential” within the meaning of General Municipal Law § 805-a.  Other than the fact that the summer camp was, in fact, discussed during executive session, respondent has offered no compelling explanation of why it was discussed therein or established that any expectation of secrecy was reasonable.  In an affidavit submitted with the board’s answer, the superintendent asserts that “it was [his] decision whether or not to grant the [t]own’s request,” and he simply “chose to inform the [b]oard of [his] decision and [his] reasons for the decision in executive session ... on June 9, 2020.”[2]  The superintendent also testified at the hearing that he would not “typically” have raised this issue in executive session, but that he did so, in part, because he “anticipated that there would be some community push back regarding [his] recommendation.”  This is not a permissible reason to enter executive session (see Public Officers Law § 105) and supports a finding that the board should not have reasonably intended this decision to be kept secret.

Supreme Court has already declared that respondent violated the Open Meetings Law with respect to the executive session at issue, and neither party appealed this determination within the requisite timeframe.  As indicated above, Public Officers Law § 107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York (e.g., Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928).  Therefore, Supreme Court’s finding that respondent violated the Open Meetings Law is final and conclusive in this proceeding.

Even assuming that I had jurisdiction to assess the permissibility of respondent’s discussion of the summer camp in executive session, I would not be persuaded by respondent’s attempts to shoehorn the issue into one or more of the enumerated purposes for an executive session under Public Officers Law § 105.  In affidavits submitted with the board’s answer, the members of the board broadly assert that the summer camp issue posed “health and safety,” “personnel,” and “liability” concerns.  However, the “health and safety” exception only applies to “matters which will imperil the public safety if disclosed” (Public Officers Law § 105 [1] [a] [emphasis added]); respondent has not explained how the town’s request to operate a summer camp on district property implicated any specific person’s employment or otherwise satisfied the exception in Public Officers Law § 105 [1] [f]; and the litigation exception pertains to “proposed, pending or current litigation,” not a generalized fear of “liability” (Public Officers Law § 105 [1] [d]; Weatherwax v Town of Stony Point, 97 AD2d 840, 841 [2d Dept 1983]).  The board’s discussion of the summer camp issue, therefore, does not appear to meet any of the enumerated purposes for conducting an executive session in Public Officers Law § 105.[3]

I do not otherwise find any support in the record for the conclusion that the board reasonably intended the summer camp decision to be kept secret (see Application of the Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147; affd Matter of Paladino v Board of Educ. for the City of Buffalo Pub. Sch. Dist., 183 AD3d 1043 [3d Dept 2020]).  The Commissioner has stated that, “[w]hile board members cannot disclose confidential information properly discussed at executive session, boards may not shield all matters from public disclosure simply by entering into executive session” (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315).  Here, the superintendent’s proffered reason for raising the issue in executive session – that he expected “community push back” – suggests that he impermissibly sought to shield the issue from public disclosure by raising it in executive session.  Accordingly, I decline to condone such action by recognizing the summer camp decision as confidential within the meaning of General Municipal Law § 805-a (1) (b).

In sum, there is no evidence in the record to suggest that petitioner’s disclosure otherwise constituted a failure to exercise his powers to the detriment of the school district that would warrant his removal for “official misconduct” (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785; Appeal of Balen, 40 id. 479, Decision No. 14,532; Appeal of Cox, 27 id. 353, Decision No. 11,973).  Thus, I find that petitioner has satisfied his burden of proving that the board’s removal of him from office for official misconduct was arbitrary and capricious – particularly where, as Supreme Court found, the board itself improperly convened the executive session at issue herein.

In light of this determination, it is unnecessary to address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that petitioner Douglas J. Rivers be reinstated to his position as a trustee or member of the Board of Education of the Rush-Henrietta Central School District, effective immediately.

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