Appeal of KENNETH M. BRUCE from action of the Board of Education of the City School District of the City of Albany regarding the manner of conducting board meetings and district business.

Decision No. 17,376

(April 16, 2018)

Honeywell Law Firm, PLLC, attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel

ELIA, Commissioner.--Petitioner, a former board member[1], appeals certain actions taken by the Board of Education of the City School District of the City of Albany (“respondent” or “board”).  While the petition is not clear, petitioner’s allegations stem from two actions undertaken by respondent: specifically, a meeting of other board members and counsel held on June 30, 2016, and construction of a theater/classroom referred to by petitioner as the “Black Box Theater.”  The appeal must be dismissed. 

The parties do not dispute that on June 30, 2016, all other members of the board and the school attorney, met, without providing notice to petitioner or the public.[2]  

The parties also do not dispute that the theater/classroom project (“project”) that resulted in use of the space as the Black Box Theater was completed between June 2015 and March 2016 in the Abrookin Career and Technical Center, a school located within respondent’s district.   It is also undisputed that the project was erroneously treated as a minor maintenance project, even though it involved reconstruction at a cost in excess of $130,000. It appears from the record that the project did not follow the rules and procedures for capital projects as it was not approved by the voters as required by Education Law §416; plans and specifications for the project, or an outline thereof, were not submitted to the New York State Education Department (“SED”) for approval of the Commissioner prior to construction as required by Education Law §408(1); and it was constructed without an architectural plan and was used as a theater without a certificate of occupancy.[3]  The parties also do not dispute that, in July 2016, SED conducted a site inspection and identified numerous areas of nonconformance with applicable building codes that needed to be remedied before the space could be used as instructional space.  In its answer, respondent admits that SED determined:

[T]he space was non-compliant with the Uniform Code and required an immediate fix which included 12 safety adjustments, including deconstructing the stage and the seating risers.

Respondent then determined that it would undertake the work needed to correct the cited building code violations identified by SED and the space would be returned to use as classroom space. Upon completion of the work, SED issued a certificate of occupancy for use of the space as classroom space commencing with the start of classes in September of the 2016-2017 school year.

The record indicates that respondent retained an attorney, James Evans, from Damon Barclay, LLP, the law firm that also served as bond counsel to the district, to conduct an “audit/investigation” of the project.  The record also indicates that respondent retained its “internal auditor,” Marvin & Co., “to support the audit/investigation” of the project.

As stated above, the petition is not clear, but it appears that petitioner challenges two sets of actions undertaken by respondent, specifically, a meeting of other board members and counsel held on June 30, 2016, and respondent’s various actions surrounding the construction  of the theater/classroom, including its audit/investigation of the project and response to such audit/investigation, culminating in a March 7, 2017 statement by respondent regarding changes in district procedures for evaluation and implementation of small facilities projects.

With respect to the June 30, 2016 meeting, petitioner argues that he was “involuntarily excluded” from the meeting and that his exclusion “violated [his] right as a duly elected board member.”  Petitioner further argues that he was never provided with “proof that this particular meeting was covered by one of the exemptions to [New York State] Open Meetings Law” (“OML”).  

With respect to respondent’s actions surrounding the construction and eventual demolition of a theater/classroom, petitioner alleges that it was built “without following any of the policies, procedures, statues or laws.”  Petitioner also alleges that the “board voted on multiple occasions, to overlook this situation ...” and “conduct[ed] a watered down investigation using investigators, who were not independent.”

Petitioner also alleges that “the rights of Albany residents have been violated” because of his “systemic exclusions from important debate and deliberations related to the business of the [school district]” and that the actions of the board are not only a “personal affront” but “disrespectful and insulting to Albany citizens.”

Petitioner does not include a request for specific relief, though the petition does contain specific allegations of violations of law committed by respondent.  He states that he could find “no similar situation within New York” and therefore, he has “no recommended remedy” and requests only such appropriate relief as the Commissioner deems just and proper. 

Respondent argues that the appeal must be dismissed as untimely, for mootness, for failure to state a claim, and because the petition is not properly verified.  Respondent also argues that certain claims should be dismissed.  With respect to petitioner’s claim that the June 30, 2016 meeting violated OML, respondent argues that the Commissioner lacks jurisdiction over OML claims and that, in any event, respondent acted lawfully.  With respect to petitioner’s claims on behalf of others, respondent argues that petitioner lacks standing.  Finally, respondent argues that “to whatever extent a claim may be made for removal of any member of the [b]oard,” petitioner has failed to name and serve necessary parties.

I will first address several procedural issues. Respondent alleges that the petition lacks proper verification. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition contains 127 paragraphs and the verification is on page five of the petition, after paragraph four.  Respondent argues that this “raises sufficient doubt” as to whether paragraphs five through 127 have actually been verified.  However, while there is a blank verification form on page 5 of the petition, the petition submitted to my Office of Counsel contains the required verification, which properly attests to all allegations in the petition.  A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification (Appeal of K.M. and T.M., 57 Ed Dept Rep, Decision No. 17,095, pet. to rev dsmd sub nom Carthage UFSD v. Commissioner of Educ, et al. Sup. Ct. Albany Co. (Mott, J.) 11/28/17, n.o.r.; Appeal of Johnson, 46 id. 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949).  Accordingly, I decline to dismiss the petition for lack of proper verification.

I note that a petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (see 8 NYCRR §275.10).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Escobar, 57 Ed Dept Rep, Decision No. 17,256; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see, Appeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029). 

The petition in this appeal consists of 62 pages with a narrative of events that involve alleged wrongdoing by respondent, but contains no request for relief as required by 8 NYCRR §275.10, and indeed specifically requests that I determine what relief should be granted.  In his reply, petitioner asserts that he is not seeking removal of any board members, which means that the petition is not intended as an application for removal under Education Law §306.  Thus, in declining to make any request for relief and affirmatively requesting that I determine what relief may be appropriate, petitioner is effectively asking that I investigate the matter and take appropriate action.  However, it is well settled that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).  The Commissioner has previously ruled that where the sole relief sought is an investigation, the appeal must be dismissed (see, Appeal of Race, 53 Ed Dept Rep, Decision No. 16,567; Appeal of Levendusky, 52 id., Decision No. 16,455).  As described above, I am unable to discern the nature of the relief sought by petitioner, and thus cannot assess whether petitioner is entitled to any such relief. Respondent has been placed in the position of speculating about what relief is being sought and what possible defenses should be raised in light of such request for relief, which is prejudicial to respondent.   Thus, petitioner has violated 8 NYCRR §275.10 by failing to present a clear and concise statement of his claim, showing he is entitled to relief, and the appeal must be dismissed on that basis.

The appeal must also 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 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). 

To the extent petitioner claims that respondent violated the Open Meetings Law with respect to the June 30, 2016 meeting, the appeal must be dismissed for lack of jurisdiction.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

All of the actions taken by respondent of which petitioner complains occurred in the past and have concluded, and there is no live controversy.  With respect to petitioner’s claims that he was unlawfully excluded from the June 30, 2016 meeting, has been systemically excluded thereafter from deliberations of the board of education and his ability to act as a board member has been thus impaired, the record indicates that petitioner resigned from the board in May 2017.  With respect to respondent’s actions relating to the Black Box theater/classroom project, the record indicates that the former Black Box Theater space was renovated in 2016 to convert it back to classroom space and bring it into compliance with applicable building code standards and that SED issued a certificate of occupancy prior to the start of the 2016-2017 school year.  The record also indicates that respondent has taken steps to prevent a recurrence of such treatment of small capital projects through changes in procedures, staffing and training.  Therefore, in both instances, no meaningful relief can be granted and such claims must be dismissd0.

In light of the above, I need not address the parties’ remaining contentions.   

Although I am constrained to dismiss the appeal on procedural grounds, this decision should not be construed as condoning respondent’s actions in failing to follow procedures required for capital projects in conducting the Black Box heater/classroom project.  The violations of law involved were serious, and the failure to treat the project as a capital project and submit the plans and specifications for the project, or a summary thereof, to SED for approval placed the health and safety of students and other occupants of the space at risk.  I also note that the record indicates that petitioner, who has an engineering background, observed deficiencies in the Black Box Theater space that he believed raised building safety concerns.  He raised those concerns with respondent and then contacted me, which led to the site inspection by SED, and ultimately to remediation of the building code violations that were found.  Whether or not members of respondent board appropriately chastised petitioner for acting independently of the board, the fact remains that petitioner’s decision to report the building code violations to SED resulted in the protection of the health and safety of students and others who occupied the Black Box Theater space.  

THE APPEAL IS DISMISSED.

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