MILLS, Commissioner.--Petitioner, the Board of Education of the Lawrence Union Free School District, seeks an order pursuant to Education Law "306 removing trustee Syd Mandelbaum ("respondent") from the board. The application must be denied.

On May 27, 1999, petitioner adopted a resolution, by a vote of five trustees in favor and two against, seeking the removal of respondent as a trustee and member of the board.

Petitioner alleges that at a meeting of the board of education held on May 18, 1999, to canvass votes and declare the results of the annual school budget vote, election of school board trustees, annual library budget vote and election of library trustees, respondent made an obscene, graphic verbal statement and gestures to trustee Gale Ross Srulevich, which was intended to harass, annoy and intimidate Ms. Srulevich and trustee Dorene Chickie Granet. Petitioner alleges that such conduct disrupted the meeting and caused trustees Srulevich and Granet, as well as the remaining trustees, to be humiliated, upset, embarrassed, intimidated, fearful and threatened; that trustees Srulevich and Granet have expressed grave concerns for their personal safety and that this fear has "permeated" their attendance at board meetings. Petitioner also alleges that on a prior occasion in April 1998, respondent engaged in similar conduct by making a sexually derogatory and intimidating statement to trustee Srulevich at a board meeting.

Petitioner contends that respondent's conduct constitutes willful violations of Penal Law ""240.20 (Disorderly Conduct) and 240.26 (Harassment in the Second Degree), Civil Rights Law "40-c, and violates board policy number 4144.4 as well as respondent's oath of office as a board trustee. Petitioner also alleges that respondent's conduct, if unaddressed by the board, may subject the school district to potential liability under Title VII of the Civil Rights Act of 1964, and would undercut its ability to enforce its policies relating to sexual harassment.

Petitioner requests that a formal hearing be held and that respondent be removed from office as a trustee and member of the board of education and that the position of trustee currently held by respondent be declared vacant. In the alternative, petitioner requests that respondent be appropriately disciplined for his conduct and statements.

Respondent generally denies petitioner's allegations and alleges that his actions were in response to and prompted by the alleged conduct of trustee Srulevich in standing up across the table from respondent, and berating respondent and pointing her finger at him in a "menacing" manner. Respondent also raises several affirmative defenses: that the petition fails to state a cause of action in quid pro quo harassment; that the petition fails to state a cause of action in hostile work environment harassment; that the petition fails to state a cause of action based upon board policy number 4144.4; and that the alleged conduct engaged in by respondent did not occur at a board meeting or in public.

A member of the board of education may be removed from office pursuant to Education Law "306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education. To be considered willful, respondent's actions must have been done intentionally and with a wrongful purpose (Application of Cleveland and Bedell, 36 Ed Dept Rep 482, Decision No. 13,781). An application seeking removal must set forth the willful violation of law, neglect of duty or willful disobedience and the facts by which it is established (8 NYCRR "277.1[a]; Application of O'Mara, 37 Ed Dept Rep 122, Decision No. 13,819). Petitioner has the burden to establish the facts upon which they seek relief (Application of O'Mara, supra).

Petitioner alleges that respondent's conduct violates the Penal Law. Although a board member must act consistent with the Penal Law (Appeal of Kozak, 34 Ed Dept Rep 501, Decision No. 13,396), the Commissioner of Education has no jurisdiction to determine whether respondent has violated the Penal Law and there is nothing in the record which establishes that respondent has been found guilty of any charges under the Penal Law.

Similarly, with respect to petitioner's allegation that respondent's behavior violates Civil Rights Law "40-c, while a board member must also conform to the Civil Rights Law, the Commissioner of Education has no jurisdiction to determine whether respondent has violated the Civil Rights Law (Application of Rothschild, 27 Ed Dept Rep 365, Decision No. 11,977) and there is nothing in the record which establishes that respondent was found guilty of violating Civil Rights Law "40-c.

Petitioner also alleges that respondent's conduct violated respondent's oath of office and board policy number 4144.4, which states the board is committed to "safeguarding the right of all employees within the school district to a work environment that is free from all forms of sexual harassment" and condemns "all unwelcome behavior of a sexual nature . . . which has the purpose or effect of creating an intimidating, hostile or offensive working environment".

As stated in Appeal of Kozak, supra:

The record establishes that on May 18, 1999, respondent made a statement accompanied with gestures, of an offensive and sexually graphic nature, to trustee Srulevich. It is not clear from the record whether respondent's conduct violated board policy number 4144.4, since the policy appears to be directed at protecting district employees and petitioner acknowledges that board members are not employees "in the strictest sense". While respondent's conduct was highly offensive and inappropriate, one instance of inappropriate or unbecoming speech by a board member is not grounds for his removal (Application of O'Mara, supra; Application of Cleveland and Bedell, supra).

Although respondent's conduct included gestures, in addition to the statement, the petition indicates that respondent and trustee Srulevich were separated from each other – Ms. Srulevich was sitting on the opposite side of the board table, three seats down from respondent, and that no physical contact occurred between the two. This appeal is, therefore, factually distinguishable from Appeal of Kozak, supra and In re O'Neil, 71 Misc. 469, cited therein. In Kozak, the board member was found to have made, in addition to threats, offensive physical contact with another board member that knocked the member from his chair and onto the floor. In O'Neil, a board member threatened another board member at a meeting and then physically assaulted the board member after the meeting while the parties were on the steps of the schoolhouse.

Removal may be warranted where a board member's conduct occurs during a board meeting and disrupts the meeting or interferes with the board's ability to function (Appeal of Kozak, supra). However, the record is unclear as to whether the conduct complained of here occurred at a duly convened meeting of the board, as alleged by petitioner. Respondent alleges that the incident in question occurred in the superintendent's office, in an area not open to the public, after the superintendent had invited board members there to await the election results, and that no meeting was called to order and seconded, no minutes were taken and no agenda was established. Although petitioner alleges that the conduct occurred at a duly convened meeting, it appears from the record that after the alleged incident, the board members left the superintendent's office and entered the stage of the auditorium to announce and adopt the election results before the public, thus suggesting that the meeting was not officially convened until the board met in the public auditorium. It also appears from the record that, regardless of the alleged incident, the results of the election were announced and adopted by the board without further incident.

In addition, while petitioner alleges that respondent's conduct caused trustees Srulevich and Granet to experience emotional distress and fear for their safety, there is nothing in the record which establishes that the board has been unable to function since the incident. Nor is there anything in the record to indicate that respondent has continuously engaged in similar conduct. Although petitioner alleges that respondent had previously made sexually graphic remarks to trustee Srulevich on or about April 28, 1998, any allegations relating to such conduct are clearly untimely pursuant to 8 NYCRR "275.16, which requires that an appeal be commenced within thirty days of the act complained of. Section 275.16 is applicable to proceedings for removal from office under Part 277 of the Commissioner's regulations (Application of Quinones, 25 Ed Dept Rep 497, Decision No. 11,654). Furthermore, I do not find that two distinct instances of allegedly inappropriate remarks by respondent, separated by over a year's interval, are sufficient to establish a continuing course of conduct by respondent so as to render timely petitioner's allegations with respect to the April 28, 1998 incident. Even if I were to consider such incident in conjunction with the May 18, 1999 incident, I do not find on the record before me that the two incidents have resulted in the board's inability to function.

Although the application must be denied, respondent's conduct was nevertheless highly offensive and inappropriate for a member of a board of education. Furthermore, as petitioner notes, such conduct by its nature may raise civil rights issues that could subject the district to litigation and possible liability under applicable Federal laws. In addition, such conduct has at least the potential to adversely affect the district's efforts to enforce its policies prohibiting sexual harassment of its employees and students. Although I do not find on the record before me that respondent's conduct is sufficient to warrant his removal, I strongly urge respondent to refrain from such behavior in the future and warn respondent that continuing instances of such conduct may constitute sufficient grounds for removal.

THE APPLICATION IS DENIED.

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