Decision No. 12,896

(March 19, 1993)

SOBOL, Commissioner.--Petitioner seeks removal of the superintendent, the assistant superintendent and four members of the board of education of the Newark Valley Central School District. The application must be denied.

On May 27, 1992, petitioner requested permission to address the school board at its meeting on June 8, 1992. At that meeting, she presented a petition signed by approximately 700 people (the "petition"), seeking to reduce the proposed school budget by 4%. The petition requested:

At the time, the board of education was negotiating renewal of the teachers' contract. The board reviewed the petition but determined they could not "freeze salaries" as the petition urged. The board then voted to adopt a contingency budget for the 1992-93 school year. This application ensued.

Petitioner seeks to represent the class of approximately 700 signatories to the petition. She seeks respondents' removal for wilful violations of the law and neglect of duty for failing to reduce the budget by 4% and for paying athletic coaches while operating under a contingency budget.

Respondents assert that the appeal is untimely and fails to comply with Commissioner's Regulations '277.1, because it does not "distinctly state the wilful violation of law, neglect of duty, or wilful disobedience of a decision, order or regulation of the commissioner charged against ...."

As a preliminary matter, an appeal may only be maintained on behalf of a class "where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR 275.2; Appeal of Czerepak, 31 Ed Dept Rep 448). Although petitioner seeks to represent everyone who signed the petition, she provides no evidence that they join in this application for removal. Since she has failed to demonstrate that all members of the proposed class also seek the relief requested here, her application to proceed as a class appeal is denied.

Regarding timeliness, 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 from the date of the decision under review (Appeal of Keen, 32 Ed Dept Rep 299; Appeal of Magee, 30 id. 479). Petitioner challenges respondents' June 8, 1992 decision declining to freeze salaries. Although unclear from the petition, petitioner also appears to challenge board determinations made as far back as 1988. In any case, this appeal was commenced August 8, 1992, more than 30 days from the date of respondents' most recent action of June 8, 1992. Petitioner asks that I excuse the delay because she waited to file her appeal until she had received minutes of the board meeting and other information relating to the determination she challenges. Since both the information and the minutes she sought simply confirm what she already knew from attending the June 8, 1992 meeting, I will not excuse the delay. The appeal must, therefore, be dismissed as untimely.

Commissioner's Regulations at '277.1 require that an application seeking removal of a school officer, set forth

Education Law '306 authorizes the Commissioner of Education to remove a trustee or member of the board of education, or superintendent, for wilful violation or neglect of duty under the law (Education Law '306(1); Application of Sabuda, 31 Ed Dept Rep 461; Matter of Legatos, 23 id. 10). 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 Garnett, 32 Ed Dept Rep 91; Appeal of Verity, 31 id. 485; Appeal of Singh, 30 id. 284). Petitioner's application asserts that respondents wilfully disregarded the petition's demand to reduce the base budget by 4%.

Petitioner's reliance upon Education Law '2008 and '2035 to establish that respondents violated the law is misplaced. Those provisions apply only to petitions signed by the requisite number of qualified voters who seek to put a proposition before the voters. They are inapplicable here since the petition at issue did not seek to have the board of education place a proposition before the voters. Instead, the proposition seems to demand that the board take unilateral action. A board of education is under no legal obligation to meet the demands of community members presented in the form of a petition, such as the one presented here. Therefore, in an application for their removal, respondents cannot be found in violation of law or neglectful of their duties even if they had disregarded the petition. In any case, the record indicates that respondents did not ignore the petition. Instead, after deliberating, the board concluded that unilaterally freezing salaries as the petition sought would violate its obligations under the Taylor Law to negotiate in good faith. For the foregoing reasons, petitioner has not shown that respondents violated the law or otherwise neglected their duties.

Although somewhat unclear, petitioner also appears to assert that the payment of coaching salaries is an improper expenditure under a contingency budget. To the contrary, coaching salaries are ordinary contingent expenses (Appeal of Farrell, 30 Ed Dept Rep 81; Matter of Moore, 18 id. 375; Matter of Cleveland Hill UFSD, 16 id. 124). Therefore, respondents' inclusion of such salaries in its contingency budget does not constitute a basis for removal.

Petitioner sets forth additional allegations of misconduct in her reply. However, a reply may not be used to supply information which should have been presented in the petition, particularly in an application for removal, where specific notice of the charges is critical (8 NYCRR '277.1; Application of Sabuda, supra; Application of Robert, 30 Ed Dept Rep 378). Accordingly, the allegations included in the reply will not be considered.

Education Law '3811(1) provides that a school district pay a trustee's or officer's legal expenses in proceedings arising out of the trustee's or officer's exercise of his or her official duties. To invoke '3811, the trustee or 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 trustee or officer; and the court or Commissioner of Education, as appropriate, must certify that the trustee or officer 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(1); Application of Sabuda, supra). Pursuant to Education Law '3811, respondents request that I certify their good faith. Having no basis to find their conduct improper, I hereby certify respondents' apparent good faith regarding the allegations set forth in the petition (Application of Sabuda, supra).

I have considered petitioner's other contentions and find them without merit.

THE APPLICATION IS DENIED.

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