Application of OREST E. BLISS for the removal of Linda J. Bruno, Superintendent, and Josephine DeVincenzi, Assistant to the Superintendent.

Decision No. 15,331

(December 21, 2005)

Guercio & Guercio, attorneys for respondents, Jeffrey Mongelli, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to remove Superintendent Linda J. Bruno ("respondent Bruno") and Assistant to the Superintendent Josephine DeVincenzi ("respondent DeVincenzi") from their respective positions with the Southampton Union Free School District ("district"). The application must be denied.

In the Spring of 2004, the district advertised in a local newspaper that its Board of Registration would meet on May 7, 2004 between the hours of 2:00 p.m. and 7:00 p.m. to register qualified voters for the May 2004 school district election. This registration occurred.

In addition, respondents asked all social studies teachers, as part of a district-wide civics lesson, to provide students with voter registration forms to bring home to their parents or legal guardians. A cover letter, dated April 27, 2004 and explaining the assignment, accompanied the forms. The cover letter instructed parents to complete the form with their child and have the child return the form to class. Seventy-five individuals registered to vote pursuant to this assignment. All of these forms were forwarded to the Suffolk County Board of Elections to determine the qualifications of the voters. This appeal ensued. Thereafter, on May 18, 2004, the budget was approved by a vote of 925 to 609.

Petitioner contends that the assignment extended the time for voter registration beyond the advertised five hours on May 7, 2004 and allowed registration less than five days before the election in violation of Education Law �2014. Petitioner alleges that the notice published in the local newspaper was false and materially misleading. He also claims that sending home voter registration forms was discriminatory and prejudicial because parents of students are more likely to vote in favor of the school budget.

Petitioner maintains that respondents must be removed from office due to a willful violation of the law and neglect of duty. Petitioner also requests a new notice, a delayed vote and a declaration that any illegal registrations are null and void.

Respondents maintain that petitioner's claims for a new notice and a declaration concerning any illegal registrations are moot because the election has occurred. They also contend that petitioner failed to join the district as a necessary party. Respondents also aver that the voter registration forms were forwarded to the Suffolk County Board of Elections for its determination of validity and that petitioner has not established jurisdiction over the Board of Elections.

Respondent Bruno denies that she willfully violated the law or neglected any duty. Respondent DeVincenzi maintains that she is not subject to removal under Education Law �306 because she is not a school officer. Respondents also argue that the district 's Board of Registration complied with the notice requirements of Education Law �2014. Finally, respondents assert that they did not intend to, nor did they, affect the outcome of the election.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as moot to the extent that petitioner requests that the vote be delayed and a new notice published. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). Since the vote was conducted on May 18, 2004, no meaningful relief can be granted with this request.

The appeal must also be dismissed to the extent that petitioner seeks to have allegedly illegal voter registrations declared null and void. These forms were sent to the Suffolk County Board of Elections for registration and the Commissioner of Education has no jurisdiction over a County Board of Elections (seeAppeal of Scrandis, 17 Ed Dept Rep 131, Decision No. 9,527).

The removal application must be dismissed as to respondent DeVincenzi because the Commissioner is without authority to order the relief requested. Education Law �306 authorizes the Commissioner to remove a "trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools, or other school officer." Respondent DeVincenzi, as the Assistant to the Superintendent for Curriculum and Instruction, is a district employee, not a school officer subject to removal under �306 (seeAppeal of Eagelfeld, 36 Ed Dept Rep 186, Decision No. 13,696).

The application to remove respondent Bruno must also be dismissed. Education Law �306 authorizes the Commissioner of Education to remove a superintendent of schools for willful violation or neglect of duty or willful disobedience of any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education. A "willful" act is one intentionally done with a wrongful purpose to disregard a lawful duty or violate a legal requirement (Application of Dunham, et al., 42 Ed Dept Rep 298, Decision No. 14,860; Application of Downing, 40 id. 396, Decision No. 14,509; Appeal of Todd, 37 id. 419, Decision No. 13,893).

Petitioner claims that respondents published a false and materially misleading notice. Education Law �2014(2) provides in pertinent part:

The district placed a notice in the local newspaper stating that the district's Board of Registration would meet for the purpose of registering qualified voters on Friday, May 7, 2004, between the hours of 2:00 p.m. and 7:00 p.m. The election was held on May 18, 2004, eleven days later. Thus, the notice complies with the requirements of �2014(2), and the registration was conducted accordingly. Therefore I do not find the notice to be false or misleading.

Petitioner also alleges that respondents violated the time limits of �2014 in that some individuals who registered through the civics assignment did so within five days of the election. The district's Board of Registration, however, did not register these voters. Rather, the district collected and forwarded the registration forms to the Suffolk County Board of Elections. Section 2014 is therefore not applicable, and as stated above, the Commissioner does not have jurisdiction over the County Board of Elections.

Petitioner further argues that respondents engaged in a plan of prejudicial and discriminatory voter registration of sympathetic voters. While a board of education may distribute factual information regarding a vote or an election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, 67 NY2d 672; Appeal of O'Brien, et al., 42 Ed Dept Rep 317, Decision No. 14,868; Appeal of D'Oronzio and D'Agostino , 41 id. 457, Decision No. 14,745). Statements that do not specifically urge support of a particular candidate may nevertheless violate the holding in Phillips v. Maurer, 67 NY2d 672, if such statements otherwise seek to persuade or convey support for a particular position (Appeal of D'Oronzio and D'Agostino, 41 id. 457, Decision No. 14,745).

I have examined the cover letter to parents and guardians regarding the social studies assignment and find it neutral and not designed to exhort favorable votes. It provides factual information and instructions concerning the assignment and a statement on the importance of voting, and it encloses a voter registration form. None of the statements urge voters to support a particular position, nor is there any evidence that they were designed to do so. There is nothing inherently wrong with registering voters as long as they are not encouraged to vote a certain way (seeAppeal of Hoefer, 41 Ed Dept Rep 203, Decision No. 14,664).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). On the record before me, petitioner has failed to establish that respondents' actions constituted a willful violation or neglect of duty under the law.

In light of this disposition I need not address the parties remaining contentions.

THE APPLICATION IS DENIED.

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