Decision No. 12,754

(July 17, 1992)

SOBOL, Commissioner.--Petitioner seeks the removal of respondent MacGregor from his position as president and member of the Board of Education of the Somers Central School District ("the district"). She further seeks an order directing respondent Ennis, the Superintendent, to reimburse the district $24,971.05 which she claims he was not entitled to receive. The application must be denied.

Respondent Ennis was hired by the Somers school board as Superintendent of Schools effective July 1, 1989. At that time, he entered into an employment agreement with the board covering July 1, 1989 through June 30, 1993. The agreement includes a provision to cover moving and relocation expenses:

Pursuant to its contractual obligation, the board authorized payment of $38,000 to respondent Ennis for expenses incurred from June 14, 1989 to June 29, 1990. According to the record, the $38,000 paid to respondent Ennis represents the total amount budgeted for the 1989-90 school year for that purpose. Thereafter, in November 1990, respondent Ennis submitted to the board a summary of nonreimbursed moving and relocation expenses amounting to an additional $26,630.95. On February 6, 1992, the school board met with its school district attorney to determine whether the superintendent's contract limited the amount he was entitled to receive for moving and relocation expenses. The attorney advised the board that, other than a proviso that the expenses be reasonable, there was no limitation on the reimbursement. On February 7, 1992, respondent MacGregor determined that the additional expenses were reasonable and authorized the issuance of a check to respondent Ennis for $26,630.95. Due to an error in a duplicate claim, respondent Ennis issued a refund check to the district for $1,659.90, leaving the payment to him of $24,971.05, the amount now in dispute. In a March 9, 1992 report, an outside auditor concluded that the expenditure was proper. On March 16, 1992, the board adopted the following resolution:

This appeal ensued. On March 27, 1992, the Board of Education adopted a resolution denying respondent Ennis' request for indemnification for legal expenses incurred as a result of this proceeding. Following the board's resolution, respondent Ennis obtained outside counsel.

Petitioner asserts that the $38,000 budgeted to cover the superintendent's relocation expenses for the 1989-90 year, was intended to be a cap. Therefore, she argues that any monies paid to him above this amount were unauthorized and must be returned. Additionally, petitioner asserts that the February 6, 1992 meeting of the board with its attorney violated the Open Meetings Law and that the action taken -- authorizing payment of an additional $26,630.95 to respondent Ennis -- should therefore be declared null and void. Petitioner also asserts that respondent MacGregor should be removed as president and member of the board of education for authorizing a payment to respondent Ennis and for seeking ratification for this payment by the board when this payment was not contemplated by the contract.

Respondents raise several defenses. First, they argue that petitioner lacks standing to bring this appeal. Further, respondents contend that I lack jurisdiction to review the matter as it stems from an alleged violation of the Open Meetings Law. Finally, respondent MacGregor asserts that since he acted on advice of counsel, his actions do not constitute a wilful violation of law under Education Law '306. Respondent Ennis argues that since the board's payment of $26,630.95 was authorized by contract, there is no basis to order his return of the funds at issue. Respondent Ennis also seeks a certificate of good faith pursuant to Education Law '3811, to enable the board to authorize the reimbursement of his legal expenses connected with this proceeding.

Concerning petitioner's standing to bring this appeal, a non-resident does not have standing to contest an action taken by a school district (Appeal of LaCorte, 29 Ed Dept Rep 170; Matter of Gormley, 15 id. 160). Petitioner fails to allege that she is a resident of the district, and without any evidence of her residence, I find that she lacks standing to bring this appeal.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Education Law '306 authorizes the removal of a board member for wilful violation of law or neglect of duty. Petitioner alleges that respondent MacGregor intentionally and wilfully violated the Internal Board Policies Code of Ethics which states: "a board member will... abide by and uphold the final majority decision of the board." Citing a memorandum from respondent Ennis and a purchase order as evidence, petitioner asserts that the board determined to limit respondent Ennis' reimbursable relocation expenses to $38,000. Petitioner alleges, therefore, that any determination by respondent MacGregor to authorize payment of additional funds to respondent Ennis violated the board's agreement and the board's code of ethics.

To be considered wilful, respondent's actions must have been intentional with a wrongful purpose (Appeal of Griffin, 31 Ed Dept Rep 221; People v.Skinner, 37 App. Div. 44; aff'd 159 N.Y. 162). However, a board member who acts on the advice of counsel cannot be found to have the requisite wilfulness to warrant removal from office (Appeal of Griffin, supra.; Application of Cotroneo, 29 Ed Dept Rep 421). As indicated earlier, the superintendent's contract only stipulates that the amount to be paid to cover respondent's Ennis' relocation expenses be reasonable. The contract itself specifies that the president of the board may authorize the payments. The record reflects that respondent MacGregor sought the advice of counsel to determine whether the contract placed a specific limitation on the amount to be paid to respondent Ennis. In response, the board's attorney advised him that while the contract did not provide a specific limit, the amount to be paid had to be reasonable. At best, I find the documents relied upon by petitioner as evidence that the board intended to provide a cap on expenses inconclusive. In any case, the board itself ratified respondent's action on March 16, 1992, providing further evidence of the board's intent. In light of the foregoing, I find no basis to conclude that respondent MacGregor engaged in any wilful conduct to warrant his removal from office. In addition, I find that the $24,971.05 paid to superintendent Ennis was properly authorized by respondent MacGregor and the full board.

Concerning petitioner's assertions that respondents violated the Open Meetings Law by holding a closed meeting on February 6, 1992, the appropriate forum for addressing a violation of the Open Meetings Law is the Supreme Court of the State of New York (Application of Eisner, 31 Ed Dept Rep __, Appeal #12719, June 16, 1992; Appeal of Strober, 30 Ed Dept Rep 4). Accordingly, that claim will not be considered here.

Respondent Ennis seeks a certificate of good faith pursuant to Education Law '3811 to be indemnified by the school board for legal fees associated with this proceeding. Education Law '3811 provides that a school district must pay a school district officer's legal expenses in proceedings arising out of the officer's exercise of his or her official duties. To invoke '3811, the officer 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 officer; and the court or the 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. The record reflects that respondent Ennis complied with the notice requirements of Education Law '3811. The board of education, however, denied his request on the basis that the subject of the appeal was outside the scope of '3811 because it did not arise out of exercise of his official duties.

The argument is not persuasive and I find respondent MacGregor's reliance on Matter of Casey v. Tieman, 124 Misc 2d 222, aff'd 110 AD2d 167, Matter of McNulty v. City School District, 110 Misc 2d 239, and Matter of Miles, 20 Ed Dept Rep 157, misplaced. In particular, the cases relied upon to support the board's position involve individuals named as parties because of a potential impact on their jobs in a matter challenging the termination of other employees. Since this appeal challenges the compensation respondent Ennis was to receive for the performance of his duties, I find that he is entitled to indemnification. But for respondent Ennis' acceptance of his position as superintendent, he would not have moved and incurred the very expenses that are now at issue. Therefore, having concluded that the technical requirements of '3811 have been met, I find that respondent Ennis acted in good faith in requesting reimbursement for his expenses. I, therefore, award a certificate of good faith.

THE APPLICATION IS DENIED.

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