Application of EDWARD LILLY for the removal of James Leighton as president and member of the Board of Education of the Lewiston-Porter Central School District.

 

(May 6, 2004)

Jason H. Sterne, Esq., attorney for respondent 

MILLS, Commissioner.--Petitioner, a member of the Board of Education of the Lewiston-Porter Central School District ("board"), seeks an order pursuant to Education Law "306 removing James Leighton ("respondent") from his position as president and member of the board.  The application must be denied.

Petitioner alleges that during a board meeting held on June 17, 2003, respondent engaged in "slanderous verbal personal attacks" against petitioner and other individuals "which continue to disrupt and accelerate the deterioration of the educational effectiveness of the [d]istrict."  Petitioner further alleges that respondent abused his authority by preventing the preparation of a transcript of his remarks at petitioner's request and by obstructing board members in their attempt to resolve the issues presented by respondent's conduct at the board meeting.     

Petitioner commenced this removal proceeding on August 6, 2003 by personally serving a copy of the petition on respondent.  Petitioner requests a finding that respondent is not entitled to a certificate of good faith pursuant to Education Law "3811.  Petitioner's request for interim relief staying the appointment of respondent as board president for the 2003-2004 school year was denied on August 29, 2003.

Respondent contends that the appeal must be dismissed as untimely and for failure to state a claim upon which relief may be granted.  Respondent also contends that the appeal must be dismissed for lack of subject matter jurisdiction to the extent that it requests relief for any alleged defamation claims.  Lastly, respondent requests that he be awarded costs, disbursements, attorney's fees and a certificate of good faith.

I must first address a number of issues concerning the record.  Petitioner's reply contains materials that buttress allegations in the petition and should have been included in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14).  A reply is not meant to support allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of S.S., 42 Ed Dept Rep 273, Decision No. 14,852; Appeal of Davies, 42 id. 62, Decision No. 14,776).  Accordingly, while I have examined petitioner's reply, I have not considered those portions that are not directly responsive to respondent"s answer.

Furthermore, petitioner includes additional exhibits with his memorandum of law.  A memorandum of law may not be used to add new materials and assertions that are not part of the pleadings (Appeal of T.M., 41 Ed Dept Rep 443, Decision No. 14,740; Appeal of D.C., 41 id. 190, Decision No. 14,661; Appeal of Muench, 38 id. 649, Decision No. 14,110).  Therefore, I have not considered those exhibits.

In addition, respondent has submitted two affidavits for inclusion in the record pursuant to "276.5 of the Commissioner"s regulations.  However, respondent's request must be denied since they concern events that occurred before submission of respondent's answer and he offers no explanation why such affidavits could not have been submitted with the answer (Appeal of McSween, 42 Ed Dept Rep 59, Decision No. 14,775).

   Lastly, I note that both parties have submitted newspaper articles to support their positions.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Decastro, 41 Ed Dept Rep 415, Decision No. 14,730; Application of Wilson, 41 id. 196, Decision No. 14,663; Appeal of Toftegaard, 25 id. 159, Decision No. 11,532).  Therefore, I will not consider such articles. 

An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16).  The 30-day limitation period also applies to removal applications made pursuant to Education Law "306 (8 NYCRR "277.1; Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Application of Downing, 40 id. 396, Decision No. 14,509).  Petitioner requests that I excuse the late service and filing of his petition because of the alleged delay and obstruction caused by respondent in preventing the preparation of a transcript of the June 17, 2003 board meeting and by the board"s refusal to accept a transcript prepared by petitioner.  Petitioner also contends that he commenced this proceeding only after the failure of all reasonable attempts to resolve the matter amicably within the board. 

The record indicates that respondent's alleged improper remarks were made at a board meeting held on June 17, 2003, and that by letter dated June 25, 2003, petitioner requested a transcription of respondent's remarks.  Petitioner alleges that on July 1, 2003 he agreed with the school board attorney and the acting superintendent that the transcript would be prepared within a few days.  On July 11, 2003, the superintendent notified petitioner in writing that respondent, as board president, directed that a transcript not be prepared and that the superintendent lacked authority to have it produced.  On July 11, 2003, petitioner provided board members with copies of a transcript he prepared for their review and suggested corrections.  On July 15, 2003, the board rejected a motion to append the transcript prepared by petitioner to the minutes of the June 17th board meeting.

Although petitioner argues that his delay should be excused for these alleged acts of obstruction, there is no requirement that a transcript be prepared or that it be appended to the board minutes.  In fact, petitioner was not prevented from preparing such transcript on his own, which was available by July 15, 2003 at the latest, within the 30-day appeal period.  Petitioner provides no reasonable excuse why he was unable to commence this proceeding until August 6, 2003, almost three weeks later.  Therefore, I will not excuse the late commencement of this proceeding and the petition is dismissed as untimely.

Even if the petition were not dismissed as untimely, it would be dismissed on the merits.  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 (Seealso, Application of Kavitsky, 41 Ed Dept Rep 231, Decision No. 14,672; Application of Lilker, 40 id. 704, Decision No. 14,588; Application of Kozak and Hetey, 40 id. 195, Decision No. 14,459).  To be considered willful, respondent"s actions must have been intentional and with a wrongful purpose. In an appeal or removal application to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 329, Decision No. 14,702; Appeal of L.S., 41 id. 270, Decision No. 14,683; Application of Lilker, supra).  Petitioner has failed to establish that respondent's actions constitute a willful violation or neglect of duty under the law. 

Petitioner has submitted a tape recording and transcript of respondent's remarks from the June 17, 2003 board meeting.  Respondent's remarks consist of a description of complaints about petitioner's alleged misconduct during the recent school board election, criticism regarding petitioner's alleged misconduct as a board member, allegations regarding petitioner's private affairs, and respondent's response to certain accusations made against him by petitioner.  To the extent petitioner alleges that the remarks made by respondent were slanderous, the Commissioner of Education has no jurisdiction to adjudicate such claims.  Any alleged defamation claims petitioner may have against respondent may be raised in a court of competent jurisdiction (Appeal of Federico, 35 Ed Dept Rep 269, Decision No. 13,538). 

Nevertheless, it was inappropriate for respondent to use the occasion of the board meeting as an opportunity to articulate his personal criticisms and opinions of petitioner's conduct.  In addition, I find that certain remarks were inappropriate and unbecoming a board president and board member.  For example, respondent stated that petitioner was elected "due to BS, disinformation, derogatory statements, innuendoes and the seat of [his] pants."  However, one instance of inappropriate or unbecoming speech by a board member is not grounds for his removal (Application of Bd. of Educ. of the Lawrence Union Free School Dist., 39 Ed Dept Rep 523, Decision No. 14,299; Application of O'Mara, 37 id. 122, Decision No. 13,819; Application of Cleveland and Bedell, 36 id. 482, Decision No. 13,781).  Furthermore, although 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 (Application of Kozak, 34 Ed Dept Rep 501, Decision No. 13,396), petitioner has failed to establish that the board has been unable to function as a result of respondent's conduct.

While 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.  A board member has a duty to proceed with constructive discussions aimed at achieving the best possible governance of the school district (Application of Kozak, supra). 

Respondent requests that he be awarded costs, disbursements and attorney's fees.  However, an appeal brought pursuant to Education Law "310 is not the proper forum for claiming monetary damages, attorney's fees or costs (Appeal of Loveland and Hazelton, 42 Ed Dept Rep 294, Decision No. 14,858; Appeal of Grinnell, 37 id. 504, Decision No. 13,914; Application of Andrews, 31 id. 453, Decision No. 12,697).

Respondent has also requested a certificate of good faith pursuant to Education Law "3811(1).  The statute provides that the reasonable costs and expenses for a board member's defense of proceedings before the Commissioner of Education shall be a district charge levied by tax upon the district, provided that: (a) the board member shall provide written notification to the board of education of the commencement of such proceeding within 5 days after service of process upon him; (b) the board shall have the right, during the 10 days following notification, to designate and appoint the legal counsel to represent the board member, in the absence of which the board member may select his own legal counsel; and (c) it is certified by the Commissioner that the board member appeared to have acted in good faith with respect to the exercise of his powers or the performance of his duties under this chapter. The record indicates that, on or about August 7, 2003, respondent forwarded a request to the board asking it to provide a defense under Education Law "3811, and that, at its August 19, 2003 meeting, the board declined to provide a legal defense for respondent causing respondent to select his own legal counsel.  Therefore, I must determine whether respondent is entitled to a certificate of good faith. 

It is appropriate to issue such certificate unless it has been established on the record that the requesting board member acted in bad faith (Application of Zimmerman, et al., 42 Ed Dept Rep 205, Decision No. 14,823; Application of Grinnell, supra; Appeal against the Bd. of Coop. Educ. Services, Third Supervisory Dist., Suffolk County, et al., 32 id. 519, Decision No. 12,905).  It is apparent that animosity exists between the parties and that respondent's remarks were made in that context and in response to respondent's perceived grievances against petitioner. Although this does not justify respondent's remarks, I find that the record fails to establish that respondent acted in bad faith.  Accordingly, I will issue a certification for the limited purpose of Education Law "3811, with the admonition that it is not to be construed as condoning respondent's actions (Application of Zimmerman, et al., supra).  I also urge both parties to abide by their duty as board members to engage in constructive discussions to further the best interests of the school district. 

THE APPLICATION IS DENIED.

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