Decision No. 12,744

(July 3, 1992)

SOBOL, Commissioner.--Petitioner, a resident of the Mt. Vernon City School District, seeks an order removing eight trustees of the Mt. Vernon Board of Education, the Superintendent and the Assistant Superintendent of Schools ("respondents") for alleged violations of the Education Law and the Civil Service Law in the appointment of a Director of Security and a Deputy Clerk. Petitioner also brings a separate application seeking an order denying respondents' indemnification for costs relating to their defense of this matter. Since the petitions raise claims based on the same facts, I have consolidated them for decision. Both the appeal and the application are dismissed.

On September 1, 1986, the Mt. Vernon Board of Education created the position of Director of Security/Director of Security and Drug Prevention ("director of security") and on November 1, 1986 appointed Mr. Bianco to that position. It is undisputed that Mr. Bianco is neither qualified nor certified to teach. On April 1, 1990 the board created the position of Administrative Assistant/Deputy Clerk ("deputy clerk") and on April 5, 1990 appointed Mary Young. Petitioner's application seeking respondents' removal for their involvement in both appointments was filed on May 29, 1991 and the appeal to challenge the board's indemnification of respondents' legal fees was filed on June 16, 1991.

Petitioner asserts that respondents should be removed, pursuant to Education Law '306, for appointing as director of security an individual who is neither qualified nor certified to teach. Petitioner further alleges that respondents violated the Civil Service Law in appointing Mary Young to fill the position of deputy clerk, because it was not offered as a competitive position. In her second appeal, petitioner sought a stay of the board's resolution to retain counsel to defend respondents on the basis that the expenditure was improperly authorized prior to a decision on her first appeal. Petitioner further seeks reimbursement for photocopying costs of $987.00, and reimbursement to the school district for salaries paid to Mr. Bianco and Mary Young.

Respondents raise numerous defenses. They assert that the application should be denied due to improper service, nonjoinder of necessary parties, failure to state a cause of action and because it is untimely. As to the merits, respondents argue that because the director of security position did not involve any teaching responsibilities, the failure to appoint a qualified or certified teacher to fill the position did not constitute a violation of the Education Law. Regarding the deputy clerk position, they claim they did not violate the Civil Service Law in making the appointment. Additionally, respondents contend that, under the circumstances, a certificate of good faith should be issued to indemnify them. Concerning respondents' claim that the petition was improperly served, the Commissioner's regulation at 8 NYCRR '275.8(a) requires that a petition be served by someone who is over 18 and not a party to the appeal. Respondents Prattella and Wrubel both provide affidavits that they were served by petitioner. Petitioner provides an affidavit that indicates otherwise. Since I am unable to resolve the matter on the papers before me and because I find no evidence that respondents were prejudiced by the alleged defect, I will not dismiss this appeal on those grounds alone.

Regarding the joinder of necessary parties, petitioner is required to name any individual as a party whose rights would be adversely affected by a determination in favor of the petitioner (Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 212; (Appeal of Osterman, 30 id. 210; Appeal of Como, 30 id. 214; Appeal of Fitzpatrick, 30 id. 214; Appeal of Giglia, et al, 27 Ed Dept Rep 453). Both Joseph Bianco, who was the director of security, and Mary Young, who was the deputy clerk at the time this appeal was commenced, are necessary parties, because petitioner seeks an order declaring their appointments invalid. Since petitioner does not name them as respondents, the appeal must be dismissed for failure to join necessary parties.

Concerning the timeliness of the application for respondents' removal, an appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). The time to bring an appeal is determined by the date the alleged misconduct occurred (Appeal of Verity, 31 Ed Dept Rep ___, Decision #12709, June 1, 1992; Appeal of Ruffino and Wilber, 31 Ed Dept Rep 183). Petitioner's complaint challenges appointments made on November 1, 1986 and April 5, 1990. Petitioner's application was not commenced until May 29, 1991, more than four years after one of the appointments and over a year after the other appointment. By way of excuse, petitioner asserts that once she became aware of respondents' actions, she attempted to notify the board of education of the alleged improprieties. Because I do not find that petitioner's rationale for delaying the commencement of her application constitutes good cause, the appeal is dismissed as untimely.

This appeal must also be dismissed on the merits. Petitioner maintains that pursuant to Education Law '306, respondents must be removed from office because of violations of Education Law ''3009 and 3010 and the Civil Service Law. Education Law '306 authorizes the Commissioner of Education to remove a member of a board of education or officer of the board for wilful violation or neglect of duty under the Education Law or any other act pertaining to the operation of the school system.

Education Law ''3009 and 3010 prohibit the payment of salaries to unqualified teachers and make it a misdemeanor for any trustee of a board of education to consent to such payment. In objecting to Mr. Bianco's appointment as director of security, petitioner asserts that he was actually hired to perform teaching functions, despite respondents' assertions to the contrary. Petitioner presents Mr. Bianco's job application as evidence that he was hired as a teacher. The record reflects that, although Mr. Bianco was asked to complete what may have been a standard form for teaching positions, Mr. Bianco left blank all questions pertaining to teaching. Upon inspection, I find that this form, as completed, rather than supporting petitioner's claim, indicates that the position was not, in fact, a teaching position. Except for petitioner's unsubstantiated and conclusory statements regarding Mr. Bianco's position, she presents no other evidence to support her allegation. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Verity, supra; Appeal of Singh, 30 Ed Dept Rep 284; Appeal of Pickreign, 28 id. 163; Matter of Keiling, 25 id. 122). Based on petitioner's failure to establish that the director of security's position was a teaching position, her allegations regarding improper payments under Education Law ''3009 and 3010 must be dismissed.

As to violations of the Civil Service Law, petitioner's allegations are, in effect, claims against the local civil service agency and the State Department of Civil Service, and do not constitute a claim against respondents. Petitioner asserts that the local civil service agency failed to comply with the State Department of Civil Service when it declined to classify the deputy clerk's position competitive. Petitioner also asserts that the creation of the deputy clerk position that authorizes the deputy to act in place of the district clerk, in essence, created two clerk positions in violation of Education Law '2130, which only authorizes the appointment of one clerk. I find the argument lacks merit. Two positions were not created as petitioner alleges; instead the deputy clerk was simply assigned to act in lieu of the clerk when the clerk was unable to serve. Thus, I find no violation of '2130. While the record indicates there may be a dispute over the local civil service commission's decision to classify the deputy clerk position exempt, it is the State Civil Service Commission that is responsible for ensuring that the local Civil Service Commissions act in compliance with the law.

As to the director of security position, the record indicates that on November 30, 1990, the State Department of Civil Service retroactively approved Mr. Bianco's appointment, extending its approval to October 1992. Therefore, I need not address whether respondents violated the Civil Service Law in initially appointing Mr. Bianco to the position because any defect appears to have been cured by the State's approval. Petitioner further contends that despite its approval, the State Department of Civil Service has failed to administer an examination. Again, petitioner's claim involves an alleged violation of law by the State Department of Civil Service.

An appeal brought pursuant to ''310 or 306 is not the proper forum for challenging the actions of the Department of Civil Service (Appeal of Cohen, 30 Ed Dept Rep 252). Moreover, petitioner has filed an appeal seeking removal of the President of the Mt. Vernon Civil Service Commission with the State Department of Civil Service. Petitioner's claim should be determined by the State Department of Civil Service. The appeal before me must therefore be dismissed (Appeal of Cohen, supra; Appeal of the Board of Education of the North Bellmore Union Free School District, 25 Ed Dept Rep 333; Appeal of Rizzuto, 25 id. 499).

Even if I were to entertain this appeal, since the record indicates that respondents made repeated efforts to address the civil service problems, there is no basis to find that respondents wilfully violated the law (Application of Griffin, 31 Ed Dept Rep 221; People v Skinner, 37 App. Div. 44, aff'd 159 NY 162).

Concerning petitioner's request for costs, the Commissioner lacks authority to award costs (Appeal of Sileo, 28 Ed Dept Rep 313). Petitioner's request for $987.00 to cover her copying costs must therefore be denied.

Education Law '3811 provides for a school board to pay for a trustee's legal expenses in proceedings arising out of the exercise of his or her official duties. To invoke '3811, the trustee must notify the board of education, in writing, of the commencement of the proceeding, within five days after service of process. Within ten days following receipt of that notice, the board must designate and appoint legal counsel to represent the trustee; and the court or Commissioner of Education, as appropriate, must certify that the trustee appeared to have acted in good faith with respect to the exercise of his powers or the performance of his duties under the Education Law (Education Law '3811; Application of Sabuda and Chudzik, 31 Ed Dept Rep ___, Decision #12700, May 26, 1992; Application of Robert, 30 id. 378). Pursuant to Education Law '3811, respondents request that I issue a certificate of good faith. Petitioner asserts that I cannot award the certificate and relies on Matter of Singer, 153 Misc 755, and an opinion of the State Comptroller, 17 Opn State Comptroller 173, both of which state that a school district may not pay for legal expenses incurred by school board members defending themselves in removal proceedings. Matter of Singer and the Comptroller's decision, however, were both rendered prior to 1965, when the Legislature amended Education Law '3811 specifically to permit districts to cover the reasonable expenses incurred by a school board trustee in defending against charges of misconduct (L 1965, ch 361, '1; Application of Sabuda and Chudzik, supra; Matter of Keeley, et al., 14 Ed Dept Rep 396). Because the record reflects that respondents have complied with Education Law '3811 and in light of the fact that this application is denied, respondents are entitled to a certificate of good faith.

THE APPLICATION IS DENIED and THE APPEAL IS DISMISSED.

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