Decision No. 13,766

(May 14, 1997)

Sullivan & Cromwell, Esqs., attorneys for petitioner, Andrew Rotstein and Richard Klapper,

Esqs., of counsel

D'Andrea and Goldstein, Esqs., attorneys for respondents, Robert Goldstein, Esq., of

counsel

MILLS, Commissioner.--Petitioner, the Coalition for the Empowerment of People of African Ancestry ("CEPAA") seeks removal pursuant to Education Law '306 of Joseph Carvalho, Donald Augustine, Martin Gasparino, William Martimucci and Maryann Tartaglia ("respondents") from their respective offices as members of the Board of Education of the Mount Vernon City School District. The application must be denied.

Petitioner bases its application on claims of respondents' alleged misconduct in connection with the May 7, 1996 annual election of board members in the Mount Vernon school district. Specifically, petitioner claims that respondents improperly endorsed candidates for election to the board of education, that respondents secretly met and consented to endorse the candidates in violation of the board of education's code of ethics, and that respondents improperly aligned themselves with candidates who used racial tactics to campaign against African American candidates. Petitioner also claims that respondents do not act in the best interest of the students and residents of Mount Vernon. Respondents deny engaging in any improper conduct, assert that they have a First Amendment right to individually endorse any candidate of their choice, and further assert that petitioner has not demonstrated any legal basis for their removal from office.

As a threshold matter, although not raised by respondent, this appeal must be dismissed for lack of standing to bring an appeal before the Commissioner of Education. This appeal was brought by the Coalition for the Empowerment of People of African Ancestry. The petition is verified by the chairperson of that group's political action committee. However, there is no indication that this organization is incorporated, nor is there any evidence that the person verifying the petition is in any manner personally affected by respondents' actions. An unincorporated group such as this lacks standing to maintain an appeal to the Commissioner (Appeal of Concerned Parents and Taxpayers of Abraham Wing Common School District, 36 Ed Dept Rep 165; Appeal of Concerned Taxpayers Awareness Group, 35 id. 448) In addition, an individual representative of an unincorporated association does not have standing to maintain an appeal pursuant to Education Law '310 (Appeal of Concerned Parents and Taxpayers of Abraham Wing Common School District, supra). Therefore, the appeal is dismissed for lack of standing.

The appeal must also be dismissed on the merits. Education Law '306 authorizes the Commissioner of Education to remove a member of a board of education for willful violation or neglect of duty under the law (Education Law '306[1]); Application of Cobbler, 35 Ed Dept Rep 176; Application of Borges, 34 id. 459). In an appeal before the Commissioner of Education, petitioner has the burden to establish the facts upon which he seeks relief (8 NYCRR '275.10; Application of Cobbler, supra; Application of Sabuda, et al., 31 Ed Dept Rep 461).

The gravamen of petitioner's application relates to respondents' endorsement of certain candidates for membership on the board of education. In support of its assertion that respondents improperly endorsed four candidates for election to the board of eduction and aligned themselves with these candidates in a racially biased campaign, petitioner submits two letters issued by a political committee in support of the four candidates. On the letterhead respondents' names appear as members of the committee. There is no indication on the letter that respondents' involvement was in any capacity other than as private citizens. They are not identified as members of the board of education, nor is the board referenced anywhere in the letter. In Phillips v. Maurer, 67 NY2D 672, the New York Court of Appeals held that school district funds may not be used to exhort the electorate in support of a particular position. However, there is no indication in the record that respondents acted in their official capacity or improperly used district funds to print or distribute the letter. Petitioner offers no other legal basis for prohibiting the individual respondents from privately endorsing a candidate for membership on the board of education. Consequently, petitioner has not established that respondents acted in violation of any law or in willful disobedience of any decision, order, rule, or regulation and, therefore, established no basis for respondents' removal with respect to the endorsement of candidates.

Petitioner also alleges that respondents met in secret to consent to endorse the candidates in violation of the board of education's code of ethics. Petitioner offers no proof in support of that allegation. Moreover, respondents submit sworn affidavits denying any such meeting took place. Based on the evidence before me, this unsubstantial claim must be dismissed.

Petitioner also contends that respondents improperly aligned themselves with candidates who used racial tactics to campaign against African American candidates running for membership to the board of education. Petitioner bases this contention on what it characterizes as the use of "buzz words", such as "property value declining", in the campaign committee letters. My review of those letters indicate that property value was referenced as a function of the quality of neighborhood schools and school staff, rather than the membership on the board of education. Even were petitioner's claim proved, respondents' participation in the campaign literature was as private citizens and not in their official capacity as members of the board of education. Consequently, petitioner provides no basis for removing respondents from office on that ground.

Petitioner's remaining allegation -- that respondents do not act in the best interest of students -- is unsupported in the record. The petition sets forth only a conclusory allegation with no supporting evidence. Even if petitioner were to establish such as fact, absent any evidence that respondents acted in willful violation of law or neglect of duty, there is no legal basis on which to remove respondents from their elected office.

In view of the foregoing, I find petitioner's allegations insufficient to justify removing respondents from office.

THE APPLICATION IS DENIED.

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