Application of A STUDENT WITH A DISABILITY, by his parent, for the removal of Clyde Drake as a member of the Board of Education of the Springville-Griffith Institute Central School District.

Application of A STUDENT WITH A DISABILITY, by his parent, for the removal of Karen Stanford as a member of the Board of Education of the Springville-Griffith Institute Central School District.

Application of A STUDENT WITH A DISABILITY, by his parent, for the removal of Linda Hoffman as a member of the Board of Education of the Springville-Griffith Institute Central School District.

Application of A STUDENT WITH A DISABILITY, by his parent, for the removal of Peter Swales as a member of the Board of Education of the Springville-Griffith Institute Central School District.

Application of A STUDENT WITH A DISABILITY, by his parent, for the removal of James Stromecki as a member of the Board of Education of the Springville-Griffith Institute Central School District.

Application of A STUDENT WITH A DISABILITY, by his parent, for the removal of Deborah King as a member of the Board of Education of the Springville-Griffith Institute Central School District.

Application of A STUDENT WITH A DISABILITY, by his parent, for the removal of James Moore as a member of the Board of Education of the Springville-Griffith Institute Central School District.

Decision No. 14,979

(November 14, 2003)

 

Andrew K. Cuddy, Esq., attorney for petitioner

Hodgson, Russ L.L.P., attorneys for respondents, Karl W. Kristoff, Esq., of counsel

 

MILLS, Commissioner.--In seven separate applications pursuant to Education Law §306, petitioner seeks the removal from office of Clyde Drake, Karen Stanford, Linda Hoffman, Peter Swales, James Stromecki, Deborah King and James Moore (“respondents”) as members of the Board of Education of the Springville-Griffith Institute Central School District (“board”). Because the applications involve common issues of law and fact, they are consolidated for decision. The applications must be denied.

Petitioner’s son, nine years old during the 2002-2003 school year, is classified as a student with a disability by the board’s committee on special education (“CSE”). On April 10, 2002, the CSE met to develop an individualized education program (“IEP”) for the 2002-2003 school year for petitioner’s son that continued his placement in a self-contained classroom with one special education teacher, six students with disabilities and one aide (1:6+1) provided by the Board of Cooperative Educational Services (“BOCES”) at North Collins Elementary School. Petitioner disagreed with the IEP and, on April 25, 2002, requested an impartial hearing. The Impartial Hearing Officer (“IHO”) issued a decision on August 13, 2002, finding the IEP to be inappropriate and ordering the CSE to place the student in a class comprised of special education and regular education students to be cooperatively taught by a special education and a regular education teacher. The hearing decision also required the CSE to conduct a functional behavioral assessment (“FBA”) of the student. The board appealed the hearing decision to the State Review Officer (“SRO”), who issued a decision on January 15, 2003 upholding the placement ordered by the IHO.

On August 30, 2002, while the appeal to the SRO was pending, another hearing request was received by the board and a second hearing was held in October 2002 regarding implementation of the August 13, 2002 IHO decision. Following a decision by the second IHO on October 23, 2002, amended on November 1, 2002, and reviewed by the SRO on January 31, 2003, the student’s placement during pendency of proceedings was determined to be the 6:1+1 BOCES class.

At a meeting on October 29, 2002, the CSE arranged for the FBA of petitioner’s son, conducted on December 16, 2002. A decision was reached at that meeting to place the student in an integrated class at Springville Elementary School with reading and math in a self-contained 1:12+1 small group pull-out class and a thirty minute specialized reading class five days a week. Petitioner’s son began attending Springville Elementary School on October 31, 2002 after having been kept home from school since the beginning of the 2002-2003 school year. That same day, petitioner filed a complaint in federal court to compel the board to implement the August 13, 2002 IHO decision. On December 29, 2002, the federal court denied petitioner’s motion for a preliminary injunction, finding that the compromise placement reached at the October 29, 2002 CSE meeting implemented the August 13, 2002 IHO decision “to a degree sufficient to provide [the student] with a free appropriate public education....”[1]

Petitioner requested another hearing on January 3, 2003. Petitioner’s request was dismissed without prejudice on February 22, 2003 by an IHO who ordered the board to implement the August 13, 2002 decision consistent with the January 15, 2003 SRO decision.

The CSE met again on February 26, 2003, determining to continue petitioner’s son in his current educational placement. On March 3, 2003, the board initiated a hearing to resolve a dispute with petitioner concerning the FBA conducted on December 16, 2002. Petitioner commenced this appeal, seeking removal of every member of the board and an order to withhold public money from the Springville-Griffith Institute Central School District.

Petitioner contends that the board failed to review the evaluation report upon which the CSE made its February 26, 2003 recommendation, in violation of 8 NYCRR §200.4[d][5] and failed to review the student’s IEP, in violation of 8 NYCRR §200.2[d]. Petitioner contends that the board’s failure to review those documents and to implement the February 22, 2003 IHO decision and January 15, 2003 SRO decision constitutes a knowing and willful failure of respondents to comply with a decision, order, rule and/or regulation of the Commissioner of Education.

Respondents deny knowingly and willfully failing to comply with a decision, order, rule or regulation of the Commissioner of Education. Specifically, respondents deny the board did not review the IEP and evaluation. Respondents allege that the compromise placement reached at the October 29, 2002 CSE meeting is consistent with the February 22, 2003 IHO decision, as determined by the December 29, 2002 federal court decision which also found that Springville’s “ongoing good faith effort to develop a new IEP” complied with the mandates of the August 13, 2002 IHO decision. Respondents also assert that the board complied with the January 15, 2003 SRO order when the CSE scheduled a meeting and arranged for the FBA conducted on December 16, 2002.

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 Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Bean, 42 Ed Dept Rep ___, Decision No. 14,810; Application of Lilker, 40 id. 704, Decision No. 14,588; Application of Balen, 40 id. 250, Decision No. 14,474). To be considered willful, respondents’ actions must have been intentional and with a wrongful purpose. In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR §275.10) and the burden of establishing the facts upon which he seeks relief (Application of Simmons, 43 Ed Dept Rep ___, Decision No. 14,899; Application of Lilker, supra; Appeal of Gaul, et al., 40 Ed Dept Rep 105, Decision No. 14,432).

8 NYCRR §200.2[d][1] provides:

Approval of services for students with disabilities. The board of education or board of trustees of each district shall, upon completion of its review of the IEP in accordance with section 200.4[e][1] and [2] of this Part, arrange for the appropriate special education programs and services to be provided to a student with a disability as recommended by the committee on special education. The board shall notify the parent of its action in accordance with section 4402[2][b][2] of the Education Law.

Petitioner claims that respondents willfully violated §200.2[d], alleging the board did not review his son’s IEP, causing the January 15, 2003 SRO decision and the February 22, 2003 IHO decisions not to be implemented. Respondents maintain that the board approved the student’s IEP developed on February 26, 2003, in compliance with the January 15, 2003 SRO decision and the February 22, 2003 IHO decision. Petitioner’s reply does not specifically deny the statement in respondents’ answer that the board reviewed the IEP.

Section 200.4[d][5] of the Commissioner’s regulations requires that:

A report of the evaluation upon which the recommendation is based shall be forwarded to the board of education along with the recommendation.

Petitioner claims that respondents knowingly and willfully violated §200.4[d][5] alleging that the board did not review the evaluation report upon which the CSE based the student’s IEP; the August 13, 2002 IHO decision; the January 15, 2003 SRO decision or the February 22, 2003 IHO decision. Respondents deny the allegations and assert that the board approved the February 26, 2003 recommendation of the CSE, continuing the student in his current placement, consistent with those administrative decisions and the December 29, 2002 federal court decision. In his reply, petitioner argues that the federal court’s decision was based upon perjured testimony that is unreliable.

Neither party submitted minutes of any board meeting or statements by respondents relating to the student’s IEP or evaluation. However, petitioner admits that the board approved the February 26, 2003 IEP while alleging that the IEP did not comply with the January 15, 2003 SRO decision and the August 13, 2002 IHO decision. Petitioner argues that the board’s February 26, 2003 action, that continued the student’s placement in reliance on the December 29, 2002 federal court decision, constitutes intentional action by respondents to engage in a willful violation or neglect of duty under the Education Law or Commissioner’s regulations. After a careful review of the record before me, I find petitioner has not met his burden.

Petitioner fails to establish any willful violation of law, neglect of duty or willful disobedience of a decision, order or regulation of the Commissioner by respondents. It appears from the record that petitioner disagreed with the CSE about the educational placement of his son and pursued numerous hearings, as well as a federal court proceeding to advance his position. The record reflects that the board approved the student’s IEP and took legal action in appealing two of these hearing decisions to the SRO. The board maintained the student’s current educational placement during pendency of these proceedings as required by Education Law §4404[4]. Petitioner’s conclusory statements that respondents acted intentionally and with wrongful purpose are insufficient to warrant removal from their elected positions on the board (Appeal of Friedman, 32 Ed Dept Rep 447, Decision No. 12,882).

 

THE APPLICATIONS ARE DENIED.

END OF FILE

[1] I take administrative notice that the court issued a subsequent order on July 31, 2003, denying respondent’s motion to dismiss petitioner’s claims under the Individuals with Disabilities Act (IDEA), 20 U.S.C. §1400 et seq. and Article 89 of the Education Law. The matter remains pending in the United States District Court for the Western District of New York.