Appeal of SCOTT A. STEPIEN from action of the Board of Education of the Lewiston-Porter Central School District and F. Warren Kahn, attorney, regarding his removal from the board; and application for the removal of Robert Laub and James Mezhir as board members; Bonnie Gifford and Robert Weller, appointed board members.

Appeal of EDWARD LILLY from action of the Board of Education Lewiston-Porter Central School District regarding his removal from the Board; Bonnie Gifford and Robert Weller, appointed board members.

Decision No. 15,732

(March 25, 2008)

Hodgson Russ LLP, attorneys for respondent board of education, F. Warren Kahn, Robert Laub and James Mezhir, Elizabeth D. Carlson and Karl W. Kristoff, Esqs., of counsel

MILLS, Commissioner.--Petitioners were elected as members of the Board of Education of the Lewiston-Porter Central School District (“board”) on May 16, 2006.  In separate appeals, petitioners challenge their removal as board members pursuant to Education Law §1709(18) on June 30, 2007.  Petitioner Stepien also seeks to remove board members Robert Laub (“Laub”) and James Mezhir (“Mezhir”), and requests additional relief.  Because the appeals and application present similar issues of fact and law, they are consolidated for decision.  The appeals must be sustained in part.  The application to remove Laub and Mezhir must be denied.

The period of petitioners’ tenure on the board was a time of considerable acrimony typified by many board actions taken by 4-2 or 5-2 votes with petitioners in the minority, and board members Laub, Mezhir, David Schaubert, and Louis Palmeri in the majority, and further evidenced by the commencement of several appeals pursuant to Education Law §306 to remove board members.  Petitioner Lilly commenced applications on April 17, 2007, to remove board president Schaubert and vice president Palmeri (Applications of Lilly, 47 Ed Dept Rep, _____, Decision No. 15,705; dismissed December 21, 2007).  In addition, Michael Gentile commenced an application to remove petitioner Lilly on April 14, 2007 (application pending).

Matters came to a head on June 19, 2007, when, apparently without warning, board president Schaubert served petitioners with charges of “official misconduct” for having “willfully or by neglect failed to complete the minimum, approved training on the financial oversight, accountability and fiduciary responsibilities of a school board member as mandated by New York State Education Law Section 2102-a and Board Policy 2331.”  By a vote of 4-2, the board resolved to conduct a hearing on the charges on June 30, 2007, and further resolved by the same vote to appoint Karl W. Kristoff, Esq., as a presiding officer to conduct the hearing.  (Mr. Kristoff did not act as presiding officer, but now appears as counsel for the board, Laub, Mezhir and F. Warren Kahn.)  Board members Schaubert, Palmeri, Laub, and Mezhir voted in favor of these measures, petitioners voted against, and board member Leonard Palumbo was absent.

Petitioners then attempted to register for the required training.  On June 20, 2007, board president Schaubert sent an email to the District Superintendent of the Erie 2-Chautaqua-Cattaraugus BOCES, in which he wrote: “As for the charges against Mr [sic] Lilly and Mr [sic] Stepien that were voted on last night; I know Mr [sic] Lilly is tight with BOCES but all I can ask is ‘don’t do them any favors’.”  Petitioners reasonably interpreted that email as asking that nothing be done to assist petitioners in enrolling in a class to satisfy the requirements of Education Law §2102-a.  By June 25, 2007, petitioners had successfully registered for a training program to be conducted at the Cattaraugus-Allegany-Erie-Wyoming BOCES on July 28, 2007.

On June 27, 2007, petitioner Lilly commenced an appeal to prevent the board from conducting a hearing as scheduled, but interim relief was denied on June 29, 2007.  That appeal was ultimately dismissed as moot on December 4, 2007 (Appeal of Lilly, 47 Ed Dept Rep ___, Decision No. 15,692).

On Saturday, June 30, 2007, the board conducted a hearing which commenced at 1:30 p.m.  At the conclusion of the hearing, at approximately 10:14 p.m., board president Schaubert handed the hearing officer the board’s findings and decision as to petitioners Lilly and Stepien.  By the familiar margin of 4-2, the board voted to remove Lilly and Stepien from the board.  Board members Schaubert, Palmeri, Laub, and Mehzir voted in favor, with Stepien and Lilly voting against.  Board members Schaubert and Palmeri were at that time the subjects of then-pending removal petitions by Lilly, mentioned above, and the terms of office of board members Schaubert and Palmeri expired less than two hours later, at midnight on Saturday, June 30, 2007, since neither had sought re-election to the board.

Petitioner Stepien commenced his appeal and application on July 13, 2007, and petitioner Lily commenced his appeal on July 30, 2007.  Interim relief in the Stepien appeal was denied on July 26, 2007.  On July 28, 2007, both petitioners completed the requisite training pursuant to Education Law §2102-a.

At the end of October 2007, respondent Kahn notified my Office of Counsel that Robert Weller and Bonnie Gifford had been appointed on September 25, 2007, to the seats previously held by petitioners.  By letter dated December 20, 2007, my Office of Counsel directed that Weller and Gifford be joined as respondents and be served with the petition, notice of petition, and all previously served papers no later than January 18, 2008.  Petitioner Stepien made service on respondent Weller on January 4, 2008, and on respondent Gifford on January 5, 2008.  Petitioner Lilly made service on both Weller and Gifford on January 12, 2008.  Neither Weller nor Gifford has appeared in this matter, or served an answer or any other papers, and their time to do so has expired.

Petitioners contend that the charges brought against them on June 19, 2007, and the hearing held on June 30, 2007, were both premature and not ripe for determination, because their first year as board members had not yet expired.  They allege that the board’s actions were taken in bad faith, and that the board majority and board attorney Kahn failed to advise them of the necessity of the training, and entrapped them.  They allege that the board’s actions are based on bias, prejudice, and retaliation, both for the acrimonious year that preceded them, and because of Lilly’s petitions to remove Schaubert and Palmeri.  They further contend that Schaubert’s email of June 20, 2007, was an attempt to keep them from enrolling in the required training course.  They further claim that Education Law §2102-a provides no sanctions for failure to comply, and that their non-willful failure to comply does not amount to “official misconduct” as provided by Education Law §1709(18).  They also claim that even if the charges and hearing were otherwise considered legitimate, the sanction of removal imposed on them was disproportionate to the offense they are alleged to have committed.

Petitioner Stepien also seeks removal of respondents Laub and Mezhir because they acted in bad faith in approving the premature charges and in voting to remove petitioners from the board.  He further alleges that they voted on June 19, 2007 to hire a hearing officer, which he claims is an unauthorized expense, and further failed to seek an opinion of the State Comptroller with respect to that allegedly improper expense.  He also contends that on June 19, 2007, they illegally voted with the majority to allow three persons who were not members of the board to attend an executive session at which confidential collective bargaining matters were discussed.  He further asks that I order recovery of the alleged improper expenses from Laub and Mezhir.

The answering respondents generally deny petitioners’ claims and argue that the board’s removal of petitioners was in accordance with law.  They claim that petitioners received four written reminders from the district clerk of their obligation to take the required training course during the period September 2006, through May 2007, and also received two oral reminders from board president Schaubert in July 2006, and again in October or November 2006.  They further claim that neither the board itself nor its attorney had any affirmative duty to tell or remind petitioners of their legal obligations.  The answering respondents further allege that by June 19, 2007, when the charges were preferred against petitioners, they believed that there was no course available to petitioners anywhere in New York State which petitioners could complete within the time limit prescribed by Education Law §2102-a.  With respect to Stepien’s other allegations, they argue that there is no basis for removal of board members Laub and Mezhir, and point out that the Commissioner has no jurisdiction to impose financial sanctions against those board members.  Finally, the answering respondents request a certificate of good faith pursuant to Education Law §3811(1).

Education Law §2102-a requires that a board member elected or appointed for a term beginning on or after July 1, 2005, must “within the first year of his or her term, complete a minimum of six hours of training on the financial oversight, accountability, and fiduciary responsibilities of a school board member.”  Board policy 2331, which was adopted in 2006, provides a somewhat different requirement:  “Within the first year of election, re-election or appointment, each Board member must complete a minimum of six hours of training on the financial oversight, accountability, and fiduciary responsibilities of a school board member.”  Although the board policy would appear to apply to board members elected or appointed at any time, and appears to measure the time for completion from the time of election or appointment, it is apparent from the hearing transcript that the board has interpreted its policy as coextensive with Education Law §2102-a.  At the hearing, then-board president Schaubert agreed that the first year of petitioners’ terms began July 1, 2006, and ended at midnight on June 30, 2007.  All of the proof at the hearing was directed toward whether or not petitioners had completed the required training by June 30, 2007.

I agree that the first year of petitioners’ terms began on July 1, 2006, and ended on Saturday, June 30, 2007.  Education Law §2102-a imposes an affirmative duty to complete the required training “within the first year of his or her term.”  However, General Construction Law §25-a(1) provides in pertinent part:

When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day ...

I therefore conclude that petitioners had until the next business day, Monday, July 2, 2007, to complete the required training.

The appeals must therefore be sustained on the ground of prematurity, because both the charges and the determinations occurred prior to the expiration of the time within which petitioners had to complete the required training.  It is a fundamental principle of law that a legal proceeding, whether civil, criminal, or administrative, cannot be commenced or prosecuted until some act or failure to act has actually occurred.  As an example presented at the hearing, a traffic ticket for operating a vehicle without a valid inspection sticker pursuant to Vehicle and Traffic Law §306(b), if issued prior to the date that the inspection sticker actually expired, would be invalid.  Likewise, pursuant to Correction Law §168-f, a sex offender has the affirmative duty to register with the Division of Criminal Justice Services within a specified period of time.  Obviously, an offender could not be prosecuted for failure to register prior to the expiration of the time within which he is required to register.  (See, e.g., 35 NYJur2d, Criminal Law §§3360-3383; Penal Law §15.00(3) defining “omission;” Penal Law §15.00(5) defining “to act” to include “to omit to perform an act;” and Penal Law §15.10, providing in pertinent part:  “The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.”) 

Here, a proceeding to expel petitioners from the board was not only commenced before their time to comply expired on Monday, July 2, 2007, but was also fully adjudicated before that date, further compounding the error.  Accordingly, under these circumstances, I am constrained to sustain the appeals to the extent that petitioners seek reinstatement.

I do not take this action lightly.  The mandatory board member training requirement is a critical component of the fiscal accountability legislation enacted in 2005 (Ch. 263, L. 2005).  The required training is intended to guide board members in the exercise of their important fiduciary responsibilities and oversight of significant public funds.  On the record before me, it appears that petitioners did not take this educational requirement seriously, and did not demonstrate the kind of accountability that the statute and its implementing regulations (8 NYCRR §170.12[a]) contemplate.  I note, however, that as soon as petitioners were charged with failure to take the training, they made every effort to take the course as soon as possible, and completed it within 28 days of the end of the first year of their terms.  However, because the board made the fatal error of charging and adjucating conduct before the conduct or omission actually occurred, I must sustain the appeals and reinstate petitioners to the board.  Accordingly, having finally fulfilled the training requirement, they are now qualified to serve.

With respect to petitioner Stepien’s application to remove board members Laub and Mezhir, I do not find sufficient cause for doing so.  They voted on June 19, 2007, to hire and pay a hearing officer to preside over a hearing pursuant to Education Law §1709(18).  While that statute does not specifically authorize the use of a hearing officer, neither does it specifically prohibit the use of a hearing officer.  Petitioner Stepien also alleges that on June 19, 2007, they illegally voted to allow three persons who were not members of the board to attend an executive session at which confidential collective bargaining matters were discussed.  From the transcript of the hearing, however, it appears that those three persons were newly-elected board members whose terms would commence 12 days later on July 1, 2007.  I do not find that these actions warrant removal.  Furthermore, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

Petitioner Stepien has not requested the removal of Mr. Kahn as school attorney.  However, I note that, if he had so requested, a school attorney is not an officer of the district and is therefore not subject to removal from office by the Commissioner of Education (Application of Rojek and Spadone, 24 Ed Dept Rep 434, Decision No. 11,453; Application of Sterling, 23 id. 294, Decision No. 11,223).

Finally, the answering respondents request a certificate of good faith pursuant to Education Law §3811(1).  Generally, it is appropriate to issue such certification unless it is established on the record that the requesting respondents acted in bad faith (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Application of Mazile, 45 id. 378, Decision No. 15,356; Application of Lilly, 43 id. 459, Decision No. 15,050).  I am disturbed by the board’s actions in this matter, in charging and removing petitioners prematurely, and in such a manner that outgoing board members Schaubert and Palmeri had the opportunity to oust petitioners from the board at the very end of their own terms.  However, I conclude from the transcript of the hearing that the answering respondents were not the leading actors in these unfortunate events.  Consequently, I hereby certify, solely for the purpose of Education Law §3811, that such respondents appear to have acted in good faith (Application of Lilly, 47 Ed Dept Rep, ___, Decision No. 15,705).

In light of these determinations, it is unnecessary to consider the parties’ other contentions.

THE APPEALS ARE SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioners Stepien and Lilly be reinstated to their positions as members of the Board of Education of the Lewiston-Porter Central School District, effective immediately.

IT IS FURTHER ORDERED that respondents Bonnie Gifford and Robert Weller, are removed from the board, effective immediately.

IT IS FURTHER ORDERED that petitioner Stepien’s application to remove board members Robert Laub and James Mezhir is denied.

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