Appeal of WENDY CANESTRO from action of the Board of Education of the Amityville Union Free School District and application for the removal of Jeannette Santos as trustee.

Decision No. 18,243

(February 27, 2023)

Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges various actions of the Board of Education of the Amityville Union Free School District (“respondent” or the “board”) and seeks the removal of trustee Jeannette Santos (“trustee Santos”) (collectively, “respondents”) in connection therewith.  The appeal must be dismissed, and the application denied. 

Trustee Santos’s daughter, Melissa Asbell, is employed as a teacher in respondent’s district. Ms. Asbell’s spouse, Gerald Asbell, is employed by the district as a teacher’s aide.  Ms. Asbell served as the high school drama club advisor during the 2016-17 and 2017-18 school years.  Mr. Asbell served as drama club advisor for one of the district’s middle schools.  In 2019, a forensic audit revealed that both Mr. and Ms. Asbell improperly handled or mismanaged funds in their capacities as club advisors.

On September 24, 2019, Ms. Asbell entered into a Stipulation of Agreement (“stipulation”) with the district.  In the stipulation, she admitted that she did not safeguard or deposit more than $5,000 of funds belonging to the drama club and failed to keep accurate records.  Ms. Asbell agreed to pay $10,000 to the district as a penalty.  The district and Ms. Asbell agreed that Ms. Asbell would no longer work or apply to work as advisor for the drama club or as advisor for any other district club.  The stipulation stated that a letter of reprimand would be placed in Ms. Asbell’s personnel file.  The district issued a similar letter to Mr. Asbell on December 13, 2019.

On July 6, 2022, respondent appointed Ms. Asbell as advisor to the district’s drama club, and Mr. Asbell as assistant advisor to the drama club.  Trustee Santos voted in favor of these appointments.

On July 20, 2022, respondent accepted the resignations of Ms. and Mr. Asbell as drama club advisor and assistant drama club advisor respectively.  Trustee Santos recused herself from this vote.  At the July 20, 2022 board meeting, the superintendent and board president advised community members that they had been unaware of the stipulation precluding Ms. Asbell from serving as a club advisor because it was not in her personnel file.  This appeal ensued.

Petitioner contends that trustee Santos had actual knowledge of the stipulation but nevertheless voted in favor of her daughter’s appointment on July 6, 2022 as drama club advisor.  She further alleges that trustee Santos and other board members engage in nepotistic practices.  Petitioner additionally contends that the board improperly gave every student who attended district schools during the 2020-2021 school year a pandemic electronic benefit (“P-EBT”) card.  Finally, petitioner claims that respondents’ activities fail to comply with the Open Meetings Law.  For relief, petitioner requests:  (1) the removal of trustee Santos, (2) the appointment of a monitor to oversee the board, (3) that I direct the board to place the stipulation between respondent and Melissa Asbell back into Ms. Asbell’s employment file, and (4) an audit into the district’s distribution of free and reduced lunch and P-EBT cards.[1]

Respondents argue that the appeal must be dismissed as untimely and for failure to join Ms. Asbell, a necessary party.  Respondents also contend that claims relating to the Asbells are moot, as they have resigned as leaders of the drama club and the stipulation between the board and Ms. Asbell has been placed into her personnel file.  On the merits, respondents contend that trustee Santos did not violate the General Municipal Law when she voted to appoint Mr. and Ms. Asbell as drama club advisors and petitioner has not otherwise identified sufficient grounds to warrant trustee Santos’s removal.  Respondents additionally contend that I lack the authority to appoint a monitor to oversee the district and conduct an audit of the district’s free and reduced lunch or P-EBT programs. 

First, I must address several preliminary matters.  Respondents object to the scope of the reply submitted by petitioner.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

Petitioner’s request that I direct that a stipulation be placed in Ms. Asbell’s file 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 that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  Respondents indicate that the stipulation has been placed in Ms. Asbell’s personnel file.  As such, this request for relief has been rendered moot.[2]

Petitioner’s claims concerning public access to board meetings must be dismissed for lack of jurisdiction.  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 appeal pursuant to Education Law § 310, and I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Similarly, I lack jurisdiction to appoint a monitor with veto power over the board.  The Appellate Division, Third Department so held in Verbanic v Nyquist (41 AD2d 466 [3d Dept 1973]).  The appointment of a school district monitor must be specifically authorized by the Legislature (see e.g. Chapter 173 of the Laws of 2021 [directing the Commissioner to appoint two monitors to serve in the East Ramapo Central School District]).

Finally, the appeal must be dismissed, and the application denied, 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).

While the majority of petitioner’s allegations pertain to trustee Santos’s July 6, 2022 vote at a public meeting of the board, petitioner also describes several acts and decisions that occurred prior to that date.  Petitioner did not commence this appeal until August 19, 2022, 44 days after the July 2022 board meeting.  She presents no explanation for this delay other than her statement that the board “continues to willfully conceal their actions from the public’s eye.”  This allegation notwithstanding, petitioner does not dispute that she had actual knowledge of the July 6 board meeting and the events preceding it well over 30 days before she commenced this appeal and application.  Accordingly, the appeal must be dismissed, and the application denied, as untimely.

For the benefit of the parties, I note that, if timely, petitioner’s allegations would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884). 

The Commissioner of Education may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner (Education Law § 306 [1]; see 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 willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose (see Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Nett and Raby, 45 id. 259, Decision No. 15,315).

Trustee Santos avers that, at the time of her vote, she “was unaware of the prohibitions contained in the stipulation between the District and [Ms. Asbell].”  While this statement strains credulity given her close relationship with her daughter, with whom she lives, the record lacks proof of the actual knowledge and wrongful intent required by Education Law § 306.

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

THE APPLICATION IS DENIED AND THE APPEAL IS DISMISSED.

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