Application of ROBERT LAUB, JAMES MEZHIR, LOUIS M. PALMERI, and DAVID S. SCHAUBERT for the removal of Edward Waller and Robert Weller as members of the Board of Education of the Lewiston-Porter Central School District.

Decision No. 16,047

(March 31, 2010)

Webster Szanyi, LLP, attorneys for respondents, Ryan G. Smith, Esq. of counsel

STEINER, Commissioner.--Petitioners seek the removal of Edward Waller and Robert Weller (collectively “respondents”, individually as “Waller” and “Weller”) from the Board of Education of the Lewiston-Porter Central School District (“board”).  The application must be denied.

Petitioners are former members of the board.  The factual background of this appeal may be found in six prior decisions (Appeal of Laub, et al., 49 Ed Dept Rep ___, Decision No. 16,040; Appeal of Laub, et al., 48 id. 481, Decision No. 15,923; Appeal of Palmeri, 48 id. 287, Decision No. 15,859; Appeal of Waechter, 48 id. 261, Decision No. 15,853; Appeal of Stepien and Lilly, 47 id. 388, Decision No. 15,732; Appeal of Lilly, 47 id. 268, Decision No. 15,692).  The facts stated in those decisions will not be repeated here.

At its meeting on July 7, 2009, the board passed resolution NA-6 unanimously with five votes and Weller and Waller abstaining.  Resolution NA-6 granted petitioners’ request for defense and indemnification with respect to the action brought against them by Scott A. Stepien in the United States District Court for the Western District of New York (“Stepien litigation”).

Petitioners contend that Waller and Weller should be removed from the board for wilfully disobeying the Commissioner’s decision in Appeal of Laub, et al., 48 Ed Dept Rep 481, Decision No. 15,923 and wilfully neglecting their duties by abstaining from voting on resolution NA-6 in a wilful attempt to illegally prevent its approval.

Respondents contend, interalia, that the appeal is moot because the board passed resolution NA-6 granting petitioners defense and indemnification and that petitioners have received a legal defense from the district’s insurance carrier in the Stepien litigation.  Respondents assert that they acted in good faith and pursuant to their powers and duties at all times relevant to the allegations contained in petition.

To the extent petitioners claim that respondents should be removed for illegally preventing approval of resolution NA-6, the appeal must be dismissed as moot.  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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Resolution NA-6 was approved by the board on July 7, 2009 despite respondents’ abstentions, granting petitioners’ request for defense and indemnification.  Therefore, respondents did not prevent its approval, the underlying dispute no longer exists and the application for respondents’ removal is moot. 

Petitioners’ claim that respondents’ abstentions, although not preventing approval of resolution NA-6, nevertheless provide the basis for their removal is without merit.  A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729). To be considered wilful, respondents’ actions must have been intentional and with a wrongful purpose.  Removal from office is a drastic remedy that should be taken only in extreme circumstances (Application of Tang, 48 Ed Dept Rep 507, Decision No. 15,932; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of Giardina, 46 id. 524, Decision No. 15,583).  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioners have not met their burden of proving that respondents’ abstentions constitute a wilful violation or neglect of duty requiring their removal from office.  Without commenting on the legitimacy of respondents’ individual reasons for abstaining, I cannot conclude from the record before me that their abstentions were meant to thwart the prior Commissioner’s decision.  Accordingly, I do not find that respondents’ abstentions constituted a wilful violation or neglect of duty under the law that would warrant their removal.

I have considered petitioners’ remaining contentions and find them without merit.

THE APPLICATION IS DENIED.

END OF FILE.