Application of KELLY VALENTIN for the removal of Fred Philips as President and Trustee of the Board of Education of the Central Islip Union Free School District.

Decision No. 17,014

(December 12, 2016)

Law Offices of Thomas M. Voltz, PLLC, attorneys for respondent, Thomas M. Voltz, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks the removal of Fred Philips (“respondent”) as president and trustee of the Board of Education of the Central Islip Union Free School District (“board”).  The application must be denied.

At the time of the events giving rise to this application, petitioner was a board member and respondent was the board president.[1]  In her removal application, petitioner alleges the following:

[v]iolation of School Law 33 section 29:14 – [a] [s]chool district being held liable for negligently failing to protect students from criminal acts committed by third parties.[2]

[n]ot adhering to “[in] [l]oco [p]arentis” [i]n place of a parent – [t]he legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent, as well as acting in the best interests of the students as they see fit.

[v]iolation of N.Y. Penal Law §490.20 – [m]aking a terroristic threat in connection to the September 17, 2013 incident involving a teacher ... herein described.

Petitioner states that on or about September 20, 2013, she received a report of an incident involving a student and a teacher which occurred on September 17, 2013.  According to the record, the student “accidently hit” the teacher and the teacher “turned around and pushed [the student]” and “told [the student] he would kill him.”  A memorandum from the high school principal (“principal”) accompanying the incident report indicated that an emergency meeting was held to discuss the incident with the teacher on September 19, 2013, in which the teacher stated that “the student hit him in the groin and he ‘went into self-defense mode’ pushing the student into the wall and threatening to kill him.’”  The memorandum further indicates that at the close of the meeting, the principal informed the teacher that she would forward her findings of the incident to the superintendent for whatever action he deemed necessary and that, as the teacher walked down the hall, he stated that “the only further action was with an AK-47.”

Thereafter, the record indicates that the principal contacted the school resource officer and the incident was reported to the police department on September 19, 2013. However, no arrest was made as the police sergeant who arrived at the school “did not feel that any charges could be made.”  According to respondent’s affidavit, the superintendent immediately suspended the teacher pending an investigation by the district.  The record also contains a follow-up memorandum from the principal which indicates that the principal made a call to the student’s parents (who do not speak English) and left a message regarding the incident.  On September 26, 2013, the principal met with the student to inquire as to whether his parents knew what had happened and according to the principal’s follow-up memorandum, the student had “told his parents that it was an accident and not to worry,” that “[t]he principal would take care of it and to ‘[l]et it go.’”  The conversation with the student was translated for the principal.

Petitioner states that at a meeting to discuss the matter attended by, among others, the superintendent, principal, school attorney, and board members, it was revealed (from interviews with students and written statements) that the teacher had previously been involved in various incidents demonstrating “past problematic behavior,” including telling a student “[w]hy don’t you go kill yourself” and verbally confronting students in his class who he “poked” in the chest.  Petitioner states that, at this meeting, respondent was “disinterested,” and that “the district felt nothing could be done since the student’s parents refused to press charges” (which respondent denies) but that petitioner disagreed and believed that the district had a right to pursue and demand an arrest.

On October 10, 2013, a police inspector attended a school board meeting and responded to various questions from the board members.  According to petitioner, “the inspector stated that a thorough investigation would be conducted and findings submitted.”  Respondent states that the inspector “explained that no formal charges were warranted or sustainable under these circumstances.”  The record indicates that on November 11, 2013, at the request of some of the board members, the school attorney drafted a letter requesting a response from the police inspector in connection to his investigation.  The draft letter stated that “[t]he community is concerned with what it perceives as a ‘double standard’” in the way district students are treated “as opposed to those adults who are supposed to [be] acting as role models in supervising our students” as well as a “double standard” in the treatment of “events occurring within [district] [s]chools as opposed to other school systems throughout Long Island.”  At a board meeting on November 12, 2013, the letter was presented for review and discussion.  Respondent declined to sign the letter on behalf of the board and no resolution was passed to have the letter sent on behalf of the board.

Petitioner contends that, inter alia, “[r]espondent has failed to serve in his capacity as board president, as well as in a role of leadership.”  Petitioner further states that respondent “did not do his due diligence as president” or “act in the best interest of the children” of the district.  Petitioner further contends that “[r]espondent stopped the school board’s [i]nvestigative actions in mid-process” and “prohibited the board from pursuing inclusive feedback from the inspector” in relation to the teacher and his threat to use an AK-47.  Petitioner alleges that by “failing to insist on having [the teacher] arrested” and “not securing a police record of his actions,” respondent has “endangered the students” and potentially subjected them to the teacher “committing the action again ... with a more serious outcome.”

Respondent contends that the application is untimely, that petitioner has failed to name a necessary party (the teacher) and has failed to demonstrate a clear legal right to the relief requested.  Respondent states that he has neither wilfully violated nor neglected his duties as an officer and the application should be dismissed in its entirety.  In particular, respondent states that petitioner has failed to establish that the teacher’s alleged conduct constitutes a crime, has failed to establish that respondent failed to fulfill his duties to the district, and has failed to establish that the letter to the police department was supported by a majority of the board.  Respondent also contends that the Commissioner should not substitute her judgment for that of respondent, and that respondent did not act arbitrarily, capriciously, abuse his discretion or fail to comply with applicable law.  Finally, respondent requests a certificate of good faith in accordance with Education Law §3811.

I will first address the procedural issues. To the extent petitioner seeks respondent’s removal as president of the board, the application must be dismissed as moot (Application of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752).  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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  However, because he remains an elected member of the board, petitioner’s request for his removal as a board member is not moot.  (Application of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752).

With respect to petitioner’s request for respondent’s removal as a board member, 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  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 Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  As noted above, all of respondent’s actions, which petitioner asserts warrant removal, took place outside the required 30-day period, as the application was served on January 2, 2014.  However, petitioner appears to argue that her application is timely because her “action was commenced within 30 days that the first occurrence was known” on December 4, 2013, when, during a board workshop, petitioner was made aware of a separate incident that occurred on November 22, 2013 in which an 8^th grade student in the district “threatened to shoot someone in the head.”  In the November 22, 2013 incident, according to the record, the police were called and the student was detained. Petitioner argues that the November 22, 2013 incident “clearly reflects disparities in treatment” between “students within the district, who commit similar offenses” and who “are either detained or arrested by police and given docket numbers,” and tenured teachers.  Respondent argues that petitioner’s explanation that the November 22, 2013 incident “somehow tolls the 30-day statute of limitations to 30 days from December 4, 2013” is “completely illogical” and involved ”a completely different event which occurred in the [d]istrict.”

Although, as noted above, a removal application may be timely commenced within 30 days of petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted, as respondent correctly contends, “the 30-day time period is only tolled when there is a delay in petitioner’s ‘discovery of the conduct at issue’” (Application of Dickinson, 50 Ed Dept Rep, Decision No. 16,223).

Here, the record indicates that petitioner had knowledge of the alleged disparities in the way district students are treated as opposed to teachers, as well as the alleged disparities in the treatment of events occurring within the district as opposed to other school systems on Long Island prior to December 4, 2013.  The record includes an undated email from petitioner to the superintendent referencing an October 31, 2013 newspaper article regarding a student in another district who was arrested and charged with making a terroristic threat.  Moreover, statements regarding such alleged disparities were included in the draft letter discussed at the November 12, 2013 board meeting at which petitioner was present and respondent declined to sign the letter.  Any effort by petitioner to gather or obtain additional information does not excuse the delay in bringing the appeal, especially where petitioner had knowledge of alleged disparities at least since the November 12, 2013 board meeting (see Application of Chiacchia, 53 Ed Dept Rep, Decision No. 16,593; Appeal of Business Systems of CNY, Inc., 46 id. 464, Decision No. 15,564; Application of Kavitsky, 41 id. 231, Decision No. 14,672).  Accordingly, petitioner’s application must be denied as untimely.

To the extent petitioner’s claims relate to the conduct of law enforcement in determining not to make an arrest, I lack jurisdiction to address such claims under Education Law §310 (see e.g. Appeal of L.T. 50 Ed Dept Rep. Decision No. 16,242).

Even if the application were not dismissed on procedural grounds, it would be dismissed on the merits.  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).  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

On this record, petitioner has failed to establish facts sufficient to warrant the removal of respondent.  The actions of which petitioner complains do not rise to the level of wilful violation or neglect of duty under the Education Law.  Petitioner has also failed to articulate any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education that respondent has wilfully disobeyed.

Although not entirely clear, to the extent petitioner intends to argue that the teacher violated New York Penal Law §490.20 and, as a result, respondent failed to “protect students from criminal acts committed by third parties,” she has failed to carry her burden of proof.  In this case, while law enforcement investigated the incident, respondent’s affidavit states that the police department’s position was that “no formal charges were warranted or sustainable under these circumstances” in the matter.  Additionally, during a meeting between the principal and the student involved, the student related that he had “told his parents that it was an accident and not to worry,” that “[t]he principal would take care of it and to ‘[l]et it go.’”  On this record, I cannot find that petitioner has established that respondent engaged in any conduct that rises to the level of wilful violation or neglect of duty under the Education Law.

Further, petitioner has not provided sufficient facts to establish that respondent did not “act in the best interest of the children” of the district or wilfully violated or neglected his duties with regard to allegations by petitioner, that he “stopped the school board’s [i]nvestigative actions in mid-process” and “prohibited the board from pursuing inclusive feedback from the inspector” in relation to the teacher and his threat to use an AK-47, in addition to declining to sign a follow-up letter regarding the police investigation.  Education Law §1711, which is made applicable to central school districts by Education Law §§1804(1) and 1805, provides that a superintendent appointed by the board of education shall possess the powers and duties to supervise teachers including reporting to the “board violations of regulations and cases of insubordination, and to suspend [a] ... teacher or other employee until the next regular meeting of [the] board, when all facts relating to the case shall be submitted to [the] board for its consideration and action.”  Here, the record indicates the district reported the incident to the police on the date it occurred and the superintendent suspended the employee that same day.  Respondent’s affidavit also states that the superintendent kept the board informed as to the handling of the matter.  The record indicates a number of dates upon which police came to the school - to respond to the initial incident on November 19, 2013 and later that night at a “Meet the Teacher Night” event, and to speak to the board regarding the incident at an October 10, 2013 board meeting.

Respondent states that he “did not believe it was in the best interests of the [d]istrict to send the proposed letter to the [p]olice [d]epartment” as he believed that the matter “was over” and that the district would not have benefited from continuing “to harass the [p]olice [d]epartment on the status of the matter or to insist upon an arrest.”  Respondent also states that “[b]y declining to sign the letter, [he] exercised [his] authority as [a] [b]oard [m]ember and officer of the [d]istrict, to express [his] opinion that the letter should not be sent.”  Respondent also indicated that at the November 12, 2013 board meeting, the school attorney explained that “another member of the [b]oard could execute the letter on behalf of the [b]oard if that was the [b]oard’s decision.”  However, the record indicates that neither those who supported sending the letter, nor those opposed, had a majority, as one member of the seven member board was absent.  The school attorney also explained at the same meeting “that individual [b]oard [m]embers could inquire of the status of the matter with the [p]olice [d]epartment in their individual capacities as concerned citizens,” according to respondent.

I also find petitioner’s claim that, by not signing the letter, respondent violated School Law, 33^rd Edition, section 29:14 – “[a] [s]chool district being held liable for negligently failing to protect students from criminal acts committed by third parties” - to be without merit.  While this publication cites various legal requirements, it is not in and of itself a law or regulation of which petitioner has alleged and proven specific violations (Application of Coleman, 45 Ed Dept Rep 282, Decision No. 15,324).

Although the application is denied on procedural grounds, one administrative matter remains.  Respondent has requested that I issue a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a board member.  It is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith (Application of Paladino, 53 Ed Dept Rep, Decision No. 16,594; Application of Lieberman, 52 id., Decision No. 16,483; Appeal of Reis and Argus, 51 id., Decision No. 16,335).  In view of the fact that the application here is denied on procedural grounds and there has been no finding that respondent acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that respondent is entitled to receive the requested certificate.

In light of this disposition, I need not address the parties’ remaining contentions.  However, nothing herein should be construed as minimizing the gravity of the underlying incidents at issue in this appeal.

THE APPLICATION IS DENIED.

END OF FILE