Decision No. 13,535

(January 23, 1996)

MILLS, Commissioner.--Petitioner seeks the removal of the superintendent and members of the Board of Education of the City School District of the City of Albany ("respondents"). The application must be denied.

On June 20, 1995, respondents presented to the public the proposed budget for the 1995-96 fiscal year. On June 27, 1995, respondents adopted an $87,365,375 budget for the 1995-96 fiscal year. On July 5, 1995, respondents passed a resolution authorizing the issuance of up to $4,000,000 in budget notes in the event that expenditures during the year exceeded revenues. This appeal followed.

Petitioner contends that respondents should be removed from office because they acted illegally and subversively in adopting a budget for the 1995-96 fiscal year. Petitioner also contends that respondents' adoption of an early retirement incentive violates the State Constitution. Respondents contend that the 1995-96 budget and the resolution authorizing the issuance of budget notes are legal. Respondents further contend that their adoption of an early retirement incentive is consistent with the State Constitution and not grounds for removal. Moreover, respondents argue that the application must be denied because petitioner failed to name and serve all necessary parties and because the application is premature.

As a threshold matter, this application must be denied as against the board members on procedural grounds. When an individual's rights may be affected by a determination in an appeal brought pursuant to Education Law '310, that individual must be joined as a necessary party (Appeal of Smith, 34 Ed Dept Rep 346; Appeal of Cardinal, 34 id. 76; Appeal of Sanfilippo, 33 id. 500). Here, petitioner failed to join the board members, whom he seeks to remove. Because a decision on the merits in this matter would necessarily involve the rights of those board members, the application must be denied as against the board members for failure to join them (Appeal of Damilatis, 33 Ed Dept Rep 465; Appeal of Williams, 33 id. 318; Appeal of Uciechowski, 32 id. 511). The fact that petitioner mentioned, in some of his papers, the board members he seeks to remove, is of no merit, because they were not named as respondents and have not been properly served in accordance with 8 NYCRR '275.8[a]. A party must be named as a respondent in the caption of the petition and served with a copy of the notice of petition and the petition to allow the named party to defend his or her position (Appeal of Haff, 35 Ed Dept Rep 130; Application to Reopen the Appeal of Reese, et al., 34 id. 447).

The application must also be denied on the merits. Education Law '306 authorizes the Commissioner of Education to remove a member of a board of education for a willful violation or neglect of duty (Education Law '306[1]; Application of Cobler, 35 Ed Dept Rep ___, Decision No. 13506, dated November 6, 1995; Application of Borges, 34 Ed Dept Rep 459; Application of Sabuda, et al, 31 id. 461). To be considered willful, respondents' actions must have been done intentionally and with a wrongful purpose (Application of Cobler, supra; Application of Sabuda, supra; Matter of Board of Cooperative Educational Services, et al., 32 Ed Dept Rep 519). In an appeal before the Commissioner of Education, the petitioner has the burden to establish the facts upon which he seeks relief (8 NYCRR 275.10; Application of Sabuda, supra; Application of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284).

Respondents' issuance of budget notes is consistent with Local Finance Law '29.00. Subdivision 3 specifically authorizes a school district to:

First, no budget notes were actually issued; respondent's resolution merely authorized their issuance at some time in the future, should it be necessary. Second, the amount of the authorized budget notes was not to exceed $4,000,000. This is less than 5% of respondents' budget and therefore complies with Local Finance Law '29.00.

Moreover, even if there were some violation of the Local Finance Law with regard to the authorization or issuance of the budget notes, there is no evidence that respondents willfully violated the law. Rather, the record shows that respondents acted on the advice of counsel in issuing the notes. A board member who in good faith acts on the advice of counsel lacks the requisite willfulness to warrant removal from office (Application of Griffin, 31 Ed Dept Rep 221; Application of Cotroneo, 29 id. 421; Matter of Gagliotti, 24 id. 402). I therefore find that petitioner has failed to prove that any willful violation of law occurred to warrant removal under Education Law '306.

Petitioner's claims regarding respondents' alleged violation of the New York State Constitution are also baseless. Respondent did not make a gift of public funds by providing early retirement incentives to employees. Chapter 12 of the Laws of 1995 created a targeted retirement incentive program. Respondents' compliance with this program is lawful and not in violation of the New York State Constitution (Antonopoulou v. Beame, 32 NY2d 126; Herreboudt v. Board of Educ. of Peekskill City School District, 41 Misc. 2d 547; Lecci v. Nickerson, 63 Misc. 2d 756).

In view of the foregoing, I find petitioner's allegations insufficient to justify removing respondents from office. I have considered petitioner's remaining contentions and find them without merit.

THE APPLICATION IS DENIED.

END OF FILE

---