Decision No. 13,270

(September 30, 1994)

SHELDON, Acting Commissioner.--Petitioner Edward H. Wolf, a member of Community School Board #11 of the New York City School District ("CSB"), filed two separate petitions under Education Law '306 seeking to remove two fellow CSB members for alleged willful dereliction of duty. Because the appeals address the same issues of law and contain overlapping issues of fact, they have been consolidated for decision. The appeals must be dismissed.

On October 4, 1993, petitioner served his first petition, seeking the removal of respondent Pearl Ginsberg ("Ginsberg") from CSB. Ginsberg has served as a member of CSB since July 1989 and was reelected for a three-year term in July 1993. She is currently serving as secretary.

Petitioner alleges that Ginsberg violated regulations of the Chancellor of the New York City School District and the New York City Board of Education ("BOE"), neglected to perform her duties and violated the public trust. Specifically, petitioner alleges that Ginsberg withheld from the full board a Chancellor's decision removing a principal (Steven Bennett), sanctioned Mr. Bennett's continuing reference to himself in correspondence as "principal," withheld information regarding an automatic rollover clause in the superintendent's contract, conspired to extend the superintendent's contract without informing the public, failed to comply with the Open Meetings Law in scheduling a meeting on July 23, 1993, made false representations about her compliance with the notice requirements for the July 23 meeting and failed to inform other board members of the need for a suspension hearing in Appeal of Hector T.

Petitioner served the second petition on October 6, 1993, seeking the removal of respondent Loretta Jones ("Jones") from CSB. Jones has served as a member of CSB since either July 1983 or July 1989 (respondent's facts differ in different documents) and was reelected for a three-year term in July 1993. She is currently serving as president.

Petitioner alleges that Jones violated regulations of the Chancellor of the New York City School District and the BOE, neglected to perform her duties and violated the public trust. Specifically, petitioner alleges that Jones failed to hold public hearings on the budget in a timely fashion, failed to implement the CSB's asbestos plan, was absent from the district office from August 30 until the end of September, during which time she failed to pick up mail or respond to correspondence, failed to inform other board members of the need for a suspension hearing in Hector T., acted unilaterally without board approval regarding the process for evaluating the superintendent, and withheld from the full board a Chancellor's decision removing a principal (Steven Bennett). Petitioner also claims that during her prior term in office, Jones refused to serve on any committees, was often absent and, when she did attend, read a book while business was being conducted.

Respondents raise numerous defenses. They assert that all their actions were lawful. They further contend that the petitions fail to state a cause of action upon which relief may be granted because an officer may not be removed for alleged misconduct that occurred during a prior term of office. They also assert that the Commissioner should decline to rule because these same issues are the subject of appeals or grievances before the Chancellor or BOE. Respondents also claim that the petitions are untimely and that service of the petitions was defective.

Before reaching the merits, I will address several procedural issues. Respondents claim that service of the petitions was defective. Section 275.8(a) of the Commissioner's regulations requires personal service of the petition by any person over eighteen years of age and not a party to the appeal. In the first appeal, petitioner allegedly attempted to personally serve Ginsberg on September 20, 1993. In the second appeal, petitioner allegedly attempted to serve the CSB office on September 20, 1993, but not Jones. However, absent any evidence to the contrary, it appears that petitioner subsequently perfected service by having a third party serve Ginsberg on October 4 and Jones on October 6, 1993. Since respondents claim no prejudice from being served on the later dates, there is no reason to dismiss on that basis.

Regarding Ginsberg's actions in scheduling a public meeting and Jones' scheduling of school budget hearings, the Commissioner of Education has repeatedly held that alleged violations of the Open Meetings Law must be pursued in a judicial proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, or in a judicial action for declaratory judgment and/or injunctive relief, and may not be the basis of an appeal to the Commissioner of Education (Public Officers Law '107; Appeal of Loriz, 33 Ed Dept Rep 50; Appeal of Brown, 32 id. 212; Appeal of Greening, 32 id. 195; Appeal of Como, 30 id. 214; Appeal of Bd. of Ed., Cornwall CSD, 25 id. 250). Accordingly, I have no jurisdiction to consider petitioner's claims regarding respondents' actions under the Open Meetings Law.

Regarding the timeliness of the appeals, respondents assert that petitioner is precluded from seeking removal of officers for alleged misconduct that occurred during a prior term of office, citing two prior decisions of the Commissioner: Appeal of Bd. of Ed., West Babylon UFSD, 21 Ed Dept Rep 41, and Appeal of Quinones, 25 id. 497. However, that principle has been rejected. As the Commissioner stated in Appeal of Bd. Of Ed. of the City School District of the City of New York and Richard R. Green, 28 Ed Dept Rep 451,

Thus, the mere fact that some of the acts of misconduct complained of occurred prior to respondents' current term of office does not preclude petitioner from seeking respondents' removal from office for those actions.

Section 275.16 of the Commissioner's regulations requires that an appeal to the Commissioner be instituted within 30 days from the making of the decision or the performance of the act complained of. Section 275.16 is applicable to proceedings for removal from office under Part 277 of the Commissioner's regulations (Appeal of Quinones, supra). To the extent that petitioner complains of respondents' continuing inaction and neglect, I find the petitions to be timely. However, I agree with respondent's contention that petitioner's challenge to the superintendent's contract extension was made at the earliest on September 20, 1993 (the date of original service), more than 30 days after the vote on the contract was taken at the July 23, 1993 meeting. While the portions of the petitions challenging the contract extension are untimely, however, they are also insufficient grounds for removal under '306 as discussed below.

With regard to the merits of the petitions, pursuant to Education Law '306, a member of a board of education may be removed if it can be demonstrated that the board member engaged in a willful violation or neglect of duty, or willful disobedience of any decision, rule or regulation of the Regents or the Commissioner of Education (Application of Steenrod, 32 Ed Dept Rep 490; Application of Sabuda and Chudzik, 31 id. 461). To be considered willful, the board member's actions must have been intentionally done with a wrongful purpose to disregard a lawful duty or violate a legal requirement (People v. Skinner, 37 App Div 44, aff'd 159 NY 162 (1899); Appeal of Eva B., 30 Ed Dept Rep 409; Appeal of Mody and Casey, 30 id. 402; Appeal of Cotroneo, 29 id. 421; Appeal of Cox, 27 id. 124). 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; Application of Steenrod, supra; Appeal of Garnett, 32 Ed Dept Rep 91). Petitioner has failed to meet that burden.

To the extent that respondents committed any misconduct by not scheduling a hearing for Hector T., that suspension was eventually ordered expunged by the superintendent without a decision by the CSB. Also, subsequent to the filing of these petitions, the BOE issued a decision in the Steven Bennett case on January 19, 1994, reversing the Chancellor's decision and upholding the CSB's actions. Accordingly, those matters have become moot and are dismissed on that basis (Appeal of Johnson, 32 Ed Dept Rep 662; Appeal of Scribani, 30 id. 164).

I will not address the merits of petitioner's claims with regard to the renewal of the superintendent's contract since petitioner's grievance in that matter was previously denied by the Chancellor on January 5, 1994. Petitioner has failed to appeal that decision under '310 of the Education Law. While the record reveals that respondents may have been less than attentive and efficient in carrying out their duties and responsibilities as CSB members and officers regarding that process, I find that petitioner has nonetheless failed to sustain his burden under Education Law '306 of proving that respondents willfully neglected their duties.

Petitioner further asserts that Jones not only neglected her duties in the renewal process, but also acted unilaterally without board approval regarding the evaluation process for the superintendent. Since the evaluation process was also addressed in the Chancellor's January 5, 1994 decision, I will not address it here. I do note, however, that Jones consulted with counsel to the Chancellor following the July 23, 1993 meeting to determine the propriety of the contract extension. Jones was advised that support for an extension had to be secured from parent association members. She secured such support. A board member who acts in good faith on the advice of counsel cannot be found to have the requisite wilfulness to warrant removal from office (Appeal of Landgrebe, 32 Ed Dept Rep 49; Appeal of Griffin, 31 id. 221; Appeal of Cotroneo, supra).

I have reviewed petitioner's remaining claims against Jones and find that to the extent she may have been less than diligent or shown errors in judgment, petitioner has nonetheless failed to prove that Jones intentionally acted with a wrongful purpose to disregard her duties. An error in judgment by a member of a board of education is not grounds for removal under Education Law '306 (Appeal of Cahill, 30 Ed Dept Rep 393, Appeal of Gellatly, 30 id. 10).

While the standard of proof for the removal of neither respondent has been met, I am concerned about their apparent lack of professionalism and, in particular, Jones' ability to manage the responsibilities of her position. I expect that respondents will make every attempt to fulfill their job responsibilities so that no further allegations of neglect will be forthcoming.

THE APPEALS ARE DISMISSED.

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