Application and Appeal of WILLIAM KING MOSS, III for the removal of Robert Feliciano, Paula Moore, Maria Gonzalez-Prescod and Daniel Calderon as members of the Board of Education of the Brentwood Union Free School District.

Decision No. 17,602

(March 19, 2019)

Bond, Schoeneck & King, PLLC, attorneys for respondents, Candace J. Gomez, Esq., of counsel

ELIA., Commissioner.--Petitioner seeks the removal of Robert Feliciano (“respondent Feliciano”), Paula Moore (“respondent Moore”), Maria Gonzalez-Prescod (“respondent Gonzalez-Prescod”) and Daniel Calderon (“respondent Calderon”) (collectively, “respondents”) as members of the Board of Education of the Brentwood Union Free School District (“board”) and complains of certain actions taken by respondents relating to the filling of two assistant superintendent positions.  The appeal must be dismissed and the application must be denied.

At a board meeting on September 5, 2017, the district’s superintendent recommended Ann Palmer for the position of Assistant Superintendent of Elementary Education and Personnel (“Assistant Superintendent of Elementary Education”).  Respondents Feliciano, Moore, and Gonzalez-Prescod voted no and respondent Calderon abstained.

On December 14, 2017, respondent Feliciano removed the item to appoint Ms. Palmer to the position of Assistant Superintendent of Elementary Education from the board’s December 14, 2017 agenda.

At a board meeting on January 18, 2018, petitioner inquired as to why the position of Assistant Superintendent of Elementary Education had not been filled.  The superintendent indicated that the board was “in discussions” to fill the position and “fully expect[ed]” to fill it.

On February 7, 2018, the board voted unanimously to abolish the position of Assistant Superintendent of Elementary Education.  The board also, upon recommendation of the superintendent, voted to create two assistant superintendent positions, one for elementary education and another for bilingual services.

    On or about February 8, 2018, the district posted two job postings on its website for the assistant superintendent positions.  One posting was for the Assistant Superintendent of Elementary Education position, and the other was for an Assistant Superintendent of Bilingual Services K-12 and Student Intake (“Assistant Superintendent of Bilingual Services”) position.  The postings indicated that applications would be accepted through February 14, 2018.  Petitioner applied for the Assistant Superintendent of Bilingual Services position electronically on February 14, 2018 at approximately 3:35 p.m.

     According to the record, on the evening of February 14, 2018, an agenda for the board’s February 15, 2018 meeting was posted on the district’s website.  The agenda contained resolutions to appoint Ann Palmer to the position of Assistant Superintendent of Elementary Education and to appoint Wanda Ortiz-Rivera to the position of Assistant Superintendent of Bilingual Services.

     The board convened the February 15, 2018 board meeting at 6:04 p.m.  At the beginning of the meeting, petitioner asked how many candidates were interviewed for the positions.  The superintendent responded that he had interviewed one candidate for each position.  The superintendent further stated that one interview occurred on February 14, 2018 while the second occurred earlier in the day on February 15, 2018.  The superintendent also indicated that one individual applied for the Assistant Superintendent of Elementary Education position, while two individuals applied for the Assistant Superintendent of Bilingual Services position.

Later in the February 14, 2018 board meeting, the board unanimously resolved to appoint Ann Palmer to the position of Assistant Superintendent of Elementary Education and Wanda Ortiz-Rivera to the position of Assistant Superintendent of Bilingual Services.  This appeal and application ensued. 

Petitioner contends that respondents violated board policy 9240, which provides, among other things, that the superintendent shall make “reasonable effort[s] to interview all qualified applicants who submit a resume ...”; that the superintendent shall “make a final recommendation [to the board] of a minimum of two (2) individuals” for administrative positions; and that, “when necessary,” the board shall advertise job vacancies in local newspapers or district newsletters.  Petitioner further asserts that the board, which was initially unreceptive to hiring Ann Palmer, reached a deal with the superintendent whereby Ms. Palmer would be given a new position (the elementary education position) and the board’s preferred candidate, Wanda Ortiz-Rivera, would be given another newly created position (the bilingual services position).  Petitioner contends that respondents’ conduct violated the New York State Penal Law and board policy.

For relief, petitioner seeks: (1) respondents’ removal from office pursuant to Education Law §306; (2) an order “permanently ban[ning]” respondents for running for board office in the district and for “the office of trustee of the Brentwood Public Library”; (3) appointment to the position of Assistant Superintendent of Bilingual Services; and (4) “[p]rotective [o]rders” preventing respondents from accessing petitioner’s “personnel records” or from serving as “references for any position or pursuit of [petitioner] for teaching or administrative positions in New York State.”

Respondents contend that the appeal must be dismissed based on the doctrine of election of remedies because petitioner previously commenced an action with the Suffolk County Human Rights Commission (“Human Rights Commission”) concerning his application to the Assistant Superintendent of Bilingual Services position.  Respondents contend that the appeal must additionally be dismissed because petitioner seeks appointment to the position of Assistant Superintendent of Bilingual Services but failed to join Ms. Ortiz-Rivera, the current occupant of such position.  Respondents also argue that petitioner’s claims concerning the Assistant Superintendent of Elementary Education position must be dismissed for lack of standing.  Respondents additionally assert that any claims alleging a violation of a collective bargaining agreement (“CBA”) between respondent and the Brentwood Principals and Supervisors Organization (“BPSO”) must be dismissed for lack of standing.  On the merits, respondents contend that petitioner has failed to show a clear legal right to the requested relief.  Respondents request dismissal of the petition and denial of the application.

First, I must address several preliminary matters.  Petitioner’s requests for protective orders preventing respondents from accessing his personnel records or from serving as references must be dismissed as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  Relief such as a protective order should be sought in a court of competent jurisdiction (Appeal of Kalnitz, 53 Ed Dept Rep, Decision No. 16,600).

Next, respondents argue that the appeal must be dismissed based upon an election of remedies as petitioner previously commenced an action with the Human Rights Commission concerning his application to the Assistant Superintendent of Bilingual Services position.  The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Campbell, 57 Ed Dept Rep, Decision No. 17,266; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of A.D., 46 id. 236, Decision No. 15,492).  It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum (Appeal of Campbell, 57 Ed Dept Rep, Decision No. 17,266; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451).  Respondents submit a letter from the Human Rights Commission to the superintendent and board dated March 16, 2018.  This letter stated that petitioner may have a sufficient basis upon which to pursue a formal complaint of racial discrimination, but further indicates that he had “chosen not to file charges ... in the hope that this matter can be resolved informally.”  The letter also requested information from the superintendent and board.  Respondents also submit the superintendent and board’s written response to the Human Rights Commission’s inquiry dated April 17, 2018.

Under these circumstances, I do not find that petitioner’s “contacting” of the Human Rights Commission constituted the commencement of an action or proceeding.  Because the record does not indicate that petitioner actually filed a formal complaint with the Human Rights Commission, respondents have not proven that petitioner has commenced a proceeding seeking the same or similar relief from the Human Rights Commission.  Moreover, even if such a proceeding had been commenced, a complaint under the Human Rights Law is initiated by a person claiming to be aggrieved by an unlawful discriminatory practice (see Executive Law §297[1]).  In this regard, petitioner indicates in his reply that the Human Rights Commission complaint “action ... pertains solely to allegations of racial discrimination” and “do[es] not seek a remedy for any of the allegations presented herein.”  Respondents have offered no evidence to contradict this assertion.  Petitioner does not claim that respondents engaged in discrimination in this appeal; rather, he claims that respondents’ actions violated district policy, were corrupt, and violated the Penal Law.  In addition, he seeks the removal of board members, relief which is not available in a Human Rights proceeding.  Therefore, I decline to dismiss the appeal and deny the application based upon an election of remedies.[1]

Petitioner further claims that petitioner lacks standing to challenge respondents’ actions concerning the Assistant Superintendent of Elementary Education position.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744).  Petitioner is a district resident and taxpayer and thus has standing to bring a removal proceeding against his elected officials pursuant to Education Law §306 (Appeal and Application of Gates, et al., 57 Ed Dept Rep, Decision No. 17,188; Application of Wilson, 41 id. 196, Decision No. 14,663; Application of Eisenkraft, 38 id. 553, Decision No. 14,092).  However, respondents are correct that petitioner lacks standing to assert the rights of others and the record does not indicate that petitioner was an applicant for the Assistant Superintendent of Elementary Education position (see e.g. Appeal of Walker, 53 Ed Dept Rep, Decision No. 16,609; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Therefore, to the extent petitioner raises complaints as to the process by which respondents filled the Assistant Superintendent of Elementary Education position, the appeal is dismissed for lack of standing.

Respondents additionally assert that any claims alleging a violation of a CBA between the board and the BPSO must be dismissed for lack of standing.  Respondents assert that petitioner is not a member of the BPSO and, as such, lacks standing to assert rights on behalf of the organization or its members.  Petitioner does not respond to this contention in his reply.  I agree with respondents that, to the extent petitioner alleges a violation of the CBA, such claims must be dismissed for lack of standing.

The appeal must be dismissed for failure to join Wanda Ortiz-Rivera, a necessary party to this appeal.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

According to the record, petitioner served a copy of the petition only on the named respondents, and the affidavits of service filed with my Office of Counsel do not include an affidavit of service for Ms. Ortiz-Rivera.  Moreover, petitioner did not name Ms. Ortiz-Rivera in the caption of the appeal.  I agree with respondents that Ms. Ortiz-Rivera is a necessary party to this appeal because one of petitioner’s requests for relief is to be “appoint[ed]” to the position she currently holds, and her rights would be adversely affected if this relief were granted (see Appeal of J.A., 58 Ed Dept Rep, Decision No. 17,522; Appeal of Trojahn, 57 id., Decision No. 17,360; Appeal of McCart, 49 id. 229, Decision No. 16,010).  Therefore, the appeal must be dismissed for failure to join Ms. Ortiz-Rivera as a necessary party to this appeal.

Petitioner’s removal application must be denied 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).  To be considered wilful, the board member’s actions must have been intentional and with a wrongful purpose (see Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315).

In an appeal or removal application 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; Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315).

Here, petitioner has not demonstrated that respondents committed any wilful acts justifying their removal from office.  First, petitioner’s allegation that respondents violated board policy 9240 is insufficient to warrant their removal as it is well-settled that, even if proven, violation of a board’s bylaws or policies alone is not a sufficient basis for removal of a member of a board of education in a proceeding pursuant to Education Law §306 (Application of Simmons, 53 Ed Dept Rep, Decision No. 16,596; Application of Malgieri, et al., 52 id., Decision No. 16,482; Application of Vogel, 46 id. 481, Decision No. 15,570).  Therefore, even assuming the truth of petitioner’s allegations, respondents would not be subject to removal for violating board policy 9240.

Petitioner additionally alleges that respondents committed a wilful violation of law insofar as they violated Penal Law §§105.05 (“Conspiracy in the fifth degree”) and 200.56 (“Corrupt use of position or authority”).  However, petitioner’s arguments concerning the Penal Law, at their core, merely reiterate his argument that respondents violated board policy 9420.  For example, petitioner alleges that respondents engaged in criminal conduct “[b]y ... violating school board policy and the [d]istrict’s conventions [for hiring] to attain a benefit for the person of their preference,” and that respondents engaged in a “quid pro quo” with the superintendent whereby respondents agreed to appoint Ms. Palmer if a new position could be created for Ms. Ortiz-Rivera which “violated several clauses of Brentwood School Board Policy #9420.”  As indicated above, violation of a board policy is an insufficient basis for removal of a board member in a proceeding pursuant to Education Law §306.  Moreover, although a board member must act consistent with the Penal Law (see Appeal of Kozak, 34 Ed Dept Rep 501, Decision No. 13,396), the Commissioner of Education has no jurisdiction to determine whether respondents have violated the Penal Law and there is nothing in the record which establishes that respondents have been found guilty of any charges under the Penal Law (Application of the Bd. of Educ. of the Lawrence Union Free Sch. Dist., 39 Ed Dept Rep 523, Decision No. 14,299).  Therefore, petitioner’s invocation of the Penal Law also fails to allege a wilful violation of law which might justify respondents’ removal from office.

While the appeal must be dismissed and the application must be denied, I am compelled to comment on the process respondents followed in appointing Ms. Ortiz-Rivera to the position of Assistant Superintendent of Bilingual Services.  The record reflects that the district advertised an opening for this position for approximately one week, and that petitioner applied prior to the closing date of such posting.  However, despite receiving only two applicants for the position – petitioner and Ms. Ortiz-Rivera – the superintendent only interviewed Ms. Ortiz-Rivera (on either February 14 or 15, 2018) and voted to appoint Ms. Ortiz-Rivera on February 15, 2018, the day after the posting closed.  While the record suggests that respondents were unaware of petitioner’s application until February 15, 2018, they have not adequately explained why they or the superintendent did not receive petitioner’s application, which was sent within the timeframe of, and in the manner prescribed by, the job posting.

In any event, petitioner clearly informed respondents of his application for the Assistant Superintendent of Bilingual Services position at the start of the February 15, 2018 board meeting.  Petitioner also, at the beginning of that meeting, alleged that respondents violated policy 9240 insofar as the superintendent failed to make “reasonable effort to interview all qualified applicants who submit a resume” for the position and also failed to “make a final recommendation [to the board] of a minimum of two (2) individuals.”  Respondents have offered no reason on appeal why they could not have considered petitioner’s application consistent with board policy 9240.[2]  Although respondents’ actions are understandable insofar as they received limited applications for these positions and had previously interviewed Ms. Palmer and Ms. Ortiz-Rivera, board policy 9240 does not provide for an exception under such circumstances.  Therefore, I admonish respondents to comply with all aspects of board policy 9240 with respect to administrative recruitments, and to amend such policy if it wishes to authorize exceptions to the existing policy.

Finally, to the extent petitioner seeks an order banning respondents from serving as board members, or as trustees of the Brentwood Public Library, petitioner has not established a clear legal right to such extraordinary relief.  Petitioner cites no statute that would authorize the Commissioner to order such a remedy and indeed I find none.  If petitioner seeks a remedy from the Commissioner for board member malfeasance, the statutory remedy is provided for in Education Law §306.[3]  And, for the reasons described above, petitioner has not proven on this record that respondents engaged in a wilful violation of law or a neglect of duty sufficient to justify removal pursuant to that statute.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPLICATION IS DENIED AND THE APPEAL IS DISMISSED.

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