Application of TRACY HROMADA, NEIL HROMADA, LAURA HOENIG, RICHARD HOENIG, TRACY LIARDI WHARTON AND DANIELLE PERSICHILLI for the removal of Karen Lessler as trustee and president of the Board of Education of the Middle Country Central School District.

Decision No. 18,111

(April 25, 2022)

Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ROSA., Commissioner.--Petitioners seek the removal of Karen Lessler (“respondent”) as a trustee and president of the Board of Education of the Middle Country Central School District (“board”).  The application must be denied.

Given the disposition of this application, a detailed recitation of the facts is unnecessary.  From July 2020 through May 2021, respondent posted or reposted four posts on a social media account.[1]  While there is some dispute as to whom these posts were directed, the record reflects that the posts were of a political nature.  This application for removal ensued.

Petitioners argue that respondent should be removed from the board because her social media posts “willfully and intentionally debased [certain] community members.”  Petitioners further allege that respondent violated Public Officers Law § 103 (a) when she limited the number of people permitted to attend the August 18, 2021 board of education meeting.    

Respondent argues that petitioners’ claims related to the social media posts are untimely and that the Commissioner lacks jurisdiction over alleged violations of the Open Meetings Law.  Respondent also argues that petitioners have failed to state a claim upon which relief may be granted and have failed to meet their burden of proof.   

This application must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The 30-day timeframe also applies to a removal application 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).  The Commissioner has held that a removal application is timely when commenced within 30 days of the petitioner’s good faith discovery of the challenged conduct, even if the actual conduct occurred more than 30 days prior (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810). 

In this case, respondent’s social media posts were dated July 2020, December 2020, January 2021, and May 2021.  Petitioners commenced this application in September 2021, approximately four months after the date of the final post.  Although petitioners allege that they became aware of the posts on or about August 11, 2021, they do not allege that they were unable, in good faith, to discover respondent’s public social media activity prior to August 11, 2021 (Appeal of Affronti, 54 Ed Dept Rep, Decision No. 16,756; Application of Leman and Sluys, 39 id. 330, Decision No. 14,252).  Accordingly, petitioners’ claims concerning respondent’s social media posts must be dismissed as untimely.   

Petitioners also claim that respondent violated Public Officers Law § 103 (a) when she limited the number of people permitted to attend the August 18, 2021 board of education meeting.  Public Officers Law § 107 vests exclusive jurisdiction over alleged violations of the Open Meetings Law in the Supreme Court of the State of New York (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928).  Therefore, such allegations may not be adjudicated in an application pursuant to Education Law § 306, and I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

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

THE APPLICATION IS DENIED.

END OF FILE