Application of PATRICK A. NETT and RONALD R. RABY for the removal of Tina Marie Weeks as a member of the Board of Education of the Patchogue-Medford Union Free School District.

Decision No. 15,315

(October 24, 2005)

 

Hamburger, Maxson, Yaffe, Wishod & Knauer, LLP, attorneys for petitioners, Richard Hamburger, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent Weeks, Howard M. Miller, Esq., of counsel

T. Kevin Murtha & Associates, P.C., attorneys for respondent board of education, Joseph E. Madsen, Esq., of counsel

MILLS, Commissioner.--Petitioners seek the removal of Tina Marie Weeks (“Weeks”) from her position as a member of the Board of Education of the Patchogue-Medford Union Free School District (“board”). The application must be denied.

Petitioners are residents and taxpayers in the Patchogue-Medford Union Free School District (“district”). Petitioners also served as members of the board from July 1, 1998 to June 30, 2004. Respondent Weeks has served as a member of the board since July 1, 1997.

In 2003, the district began an investigation into allegations of misconduct by a school district employee. The district brought disciplinary charges against the employee and a hearing was conducted pursuant to Civil Service Law §75. At the conclusion of the hearing, the appointed hearing officer found the employee guilty as charged of 17 counts of misconduct and recommended termination of his employment. On March 22, 2004, by a vote of four to three, the board adopted the hearing officer’s findings and recommendation, and terminated the employee. Petitioners voted in favor of termination and Weeks voted against it.

In 2004, the terminated employee commenced a civil action in federal court challenging his termination and seeking, among other things, damages, reinstatement, back pay and benefits. Petitioners, the district, and others, were named defendants in that action.

On April 19, 2005, the terminated employee was deposed in the civil case. During his testimony, he stated under oath that he had in his possession CD recordings, approximately one to two hours long, of four or five executive sessions of the board at which his possible termination was discussed. The terminated employee further stated that the CDs were given to him by Weeks who made the recordings and delivered them to him after each executive session. Petitioners did not know that Weeks surreptitiously recorded those sessions and did not consent to recording. Petitioners allege that they first learned of the tapings on April 27, 2005 by letter from their attorney.

Petitioners maintain that the statements made in executive session are confidential. They allege that Weeks divulged confidential information acquired in the course of her official duties for the purpose of assisting the employee in litigation against the district. Petitioners contend that this disclosure frustrated and interfered with the operations of the district and caused disharmony among school officers. They assert that, by her conduct, Weeks breached her fiduciary duty as a board member and violated both her oath of office and General Municipal Law §805-a. They maintain that Weeks’ conduct was both intentional and willful, warranting her removal from the board.

Weeks admits that she recorded the executive sessions without the knowledge of her fellow board members and gave the recordings to the employee, but denies that she willfully violated the law or neglected her duties. She instead claims that she acted in the interest of justice in protecting the rights of the employee whom she believed was subjected to an unfair investigation and termination. She likens herself to a whistleblower, and maintains that she acted in good faith, and on the advice of counsel. Weeks further maintains that the application is untimely and requests a certificate of good faith pursuant to Education Law §3811.

The board argues that the petition should be dismissed as against it. The board asserts that the recordings are property of the district and asks that I order the recordings destroyed at the conclusion of the federal court action.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Bean, 42 id. 171, Decision No. 14,810). In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Application of Dulkiewicz, 40 id. 710, Decision No. 14,590; Appeal of Leman and Sluys, 39 id. 407, Decision No. 14,274).

In this case, petitioners allege that they first learned of the tape recordings on April 27, 2005 and Weeks has not refuted that allegation. Because petitioners commenced this proceeding on May 16, 2005, within 30 days of their discovery, I find the proceeding to be timely.

I further find the board’s request for destruction of the subject recordings premature. There is no evidence in the record that the board has made a demand for the return of the recordings or that Weeks has asserted ownership of them. With regard to the board’s request for dismissal, I note that petitioners do not seek relief against the board. The only relief sought is for the removal of Weeks.

The parties do not dispute the propriety of the board’s use of executive sessions to discuss the employee’s possible termination. What is disputed, however, is whether Weeks’ surreptitious taping and disclosure of these executive sessions was a violation of law or neglect of duty. I find that Weeks’ unilateral taping and disclosure of executive session material is a violation of her fiduciary duties as a board member, her oath of office and the General Municipal Law.

A school board is a public corporate body (see e.g. Education Law §1701). As such, it can act only by a majority of the whole number of the board (General Construction Law §41; Opn. of Counsel No. 70, 1 Ed Dept Rep 770). While individual board members are free to express their opinions and to vote separately, it is fundamental that a school board can act only as a collective body. Thus, a decision to enter into executive session can only be made by a majority vote of the entire body corporate (see Public Officers Law §105[1]). Similarly, only a majority of the board can act to relinquish the protection afforded once an executive session is convened.

In the course of their duties, school boards are required to discuss and debate difficult and sensitive issues, including matters involving employee discipline, collective bargaining tactics and litigation strategies. The law specifically recognizes the delicacy of these matters by permitting them to be discussed in private (see Public Officers Law §105). The purpose of this exception to the open meetings rule is to enable public officers to deliberate freely and speak frankly in ways they might not if those discussions were held in full public view.

In this case, Weeks personally chose to divulge information that the board as a collective body properly decided to discuss in confidence. By doing so, she effectively thwarted the will of the majority and invalidated its action as a body corporate. Such conduct is contrary to the basic principles of school board governance. A single board member cannot be allowed to undermine the effective functioning of a school board by unilaterally disclosing information properly discussed in executive session.

Moreover, as a public officer, a school board member takes an oath of office to uphold the law and faithfully discharge her duties (N.Y. State Constitution Art. XIII, §1; Public Officers Law §10). Among other things, school boards are responsible for educational standards, budget matters, management issues and health and safety. In carrying out these duties, individual board members have a fiduciary obligation to act constructively to achieve the best possible governance of the school district (see Application of Kozak, 34 Ed Dept Rep 501, Decision No. 13,396). Weeks’ unauthorized disclosure of executive session information breached her fiduciary duty to the district by elevating her personal concern for one employee over the board’s determination of the best interests of the district.

In addition to a board member’s general duties and responsibilities, General Municipal Law §805-a(1)(b) provides that no municipal officer or employee (including a school board member) shall “disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interests.” It is well settled that a board member’s disclosure of confidential information obtained at an executive session of a board meeting violates §805-a(1)(b) (see Applications of Balen, 40 Ed Dept Rep 250, Decision No. 14,474; Application of the Bd. of Educ. of the Middle Country Central School Dist., 33 id. 511, Decision No. 13,132; Appeal of Henning and Rohrer, 33 id. 232, Decision No. 13,035).

Less clear is what constitutes “confidential” information. The term “confidential” is not defined in the General Municipal Law and the legislative history of §805-a does not provide any additional guidance into the meaning of that word. Notably absent from the language of §805­-a (1)(b) is any express requirement that the basis for confidentiality be statutory. It is, therefore, reasonable to assume that the Legislature intentionally intended to omit such a requirement (see McKinney’s Consolidated Laws of New York, Statutes §74).

Absent a clear statutory definition, and given the importance of ensuring a uniform application in the educational system, the interpretation of “confidential” in the school context is a matter best left to the Commissioner (see Komyathy v. Bd. of Educ. Wappinger Central School District No. 1, 75 Misc 2d 859). Information that is meant to be kept secret is by general definition considered to be “confidential” (see Black’s Law Dictionary [8th Ed. 2004]). By electing to discuss the employment matter in private executive sessions, the board implicitly decided that such discussions would remain in confidence. Clearly, this was petitioners’ reasonable expectation and, apparently, Weeks’ as well. I therefore find Weeks’ breach of this confidence to be an improper release of “confidential” information as that term is used in §805-a(1)(b). This is consistent with my decision in Appeals of Hoefer, 45 Ed Dept Rep ___, Decision No. 15,263, where I upheld a board’s removal of a member who disclosed information concerning an employee and teacher contract negotiations that were discussed in executive session.[1]

In sum, I find that Weeks violated her fiduciary duties, her oath of office and General Municipal Law §805-a(1)(b). I specifically find that Weeks breached the confidence of her fellow board members, and interfered with and compromised the board’s effectiveness and ability to function. However, on the record before me, I am constrained from removing her.

A member of a 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 Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Kavitsky, 41 id. 231, Decision No. 14,672; Application of Lilker, 40 id. 704, Decision No. 14,588). To be considered willful, the board member’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 he seeks relief (8 NYCRR §275.10; Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Appeal of Kavitsky, 41 id. 231, Decision No. 14,672).

A board member who acts in good faith on the advice of counsel lacks the requisite willfulness to warrant removal from office (see e.g. Application of Kavitsky, 41 Ed Dept Rep 231, Decision No. 14,672; Application of Fix, 39 id. 728, Decision No. 14,362; Matter of an Appeal against the Actions of the BOCES, Third Supervisory Dist., Suffolk Co., et al., 32 id. 519, Decision No. 12,905). An individual relying on the advice of counsel must in good faith believe the advice to be within the bounds of the law (Matter of an Appeal against the Actions of the BOCES, Third Supervisory Dist., Suffolk Co., et al., 32 Ed Dept Rep 519, Decision No. 12,905).

In this case, Weeks asserts under oath that prior to taping and disclosing the executive session discussions she sought the advice of her personal attorney, who advised that such conduct was not unlawful. In their reply, petitioners do not address, much less refute, Weeks’ claim that she relied in good faith on the advice of counsel.

In addition, Weeks asserts that before taping, she researched the advisory opinions of the New York State Committee on Open Government (“Committee”). Based on that research, she believed it was not illegal for her to disclose the executive session discussions. She also maintains that she acted with integrity to prevent a perceived injustice, and submits affidavits from the superintendent and three other board members stating that her actions were in good faith.

I note that the Committee’s Executive Director has issued several advisory opinions concerning the disclosure of information discussed in executive session (see e.g. OML-AO-3463 [2002]; OML-AO-3449 [2002]; OML-AO-3219 [2000]). In those opinions, the Executive Director has interpreted the term “confidential” narrowly and has expressed his view that information discussed in executive session may be disclosed unless a specific statute confers or requires confidentiality. While I respectfully disagree with the Executive Director’s narrow interpretation, I find that his advisory opinions gave Weeks a reasonable basis to believe that her actions were legal. Therefore, on the record before me, I cannot find the requisite willfulness to justify Weeks’ removal from office. She apparently acted on the advice of counsel, with the good faith belief, albeit misguided, that her actions were permissible.

While board members cannot disclose confidential information properly discussed at executive session, boards may not shield all matters from public disclosure simply by entering into executive session. As previously noted, an executive session may be properly entered into for only those purposes set forth in Public Officers Law §105. Moreover, there may be instances in which information learned during the course of a properly convened executive session warrants referral to a District Attorney, the Attorney General or other appropriate law enforcement authority for investigation and possible action. Nor does this decision prohibit the disclosure of executive session material where a board collectively decides to release such information, or where an individual board member is compelled to disclose such material pursuant to law in the context of a judicial proceeding.

Finally, Weeks requests that I issue a certificate of good faith pursuant to Education Law §3811(1). Where granted, such certification is solely for the purpose of authorizing the board to indemnify her for the legal fees and expenses associated with this proceeding. It is appropriate to issue such certification unless it has been established on the record that the requesting board member or trustee acted in bad faith (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Applications of Zimmerman, et al., 42 id. 205, Decision No. 14,823). As indicated above, I find that the record fails to establish that Weeks acted in bad faith. Accordingly, I will issue a certification for the limited purpose of Education Law §3811(1) (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050).

THE APPLICATION IS DENIED.

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[1] In Hoefer, I held that the disclosures violated §805-a(1)(b) and the board’s own code of ethics. In this case, Weeks asserts that the district’s code of ethics does not prohibit the disclosure of executive session discussions. The absence of such a policy, however, is not determinative.