Appeals of GORDON A. CARROLL from action of the Board of Education of the Chenango Valley Central School District regarding district expenditures and application for the removal of David Gill as superintendent, Michelle Feyerabend as assistant superintendent, and Judith Mitrowitz as member of the board of education.

Decision No. 18,269

(May 1, 2023)

Coughlin & Gerhart, LLP, attorneys for respondents, Nicholas S. Cortese, Esq., of counsel

Rosa., Commissioner.-- In two separate appeals, petitioner challenges actions of the Board of Education of the Chenango Valley Central School District (“respondent”) related to school district expenditures and seeks the removal of the superintendent, assistant superintendent, and respondent’s president (collectively, “respondents”) in connection therewith.  Because the appeals present similar issues of fact and law, they are consolidated for decision (8 NYCRR 275.18).  The appeals must be dismissed and the application denied. 

On April 20, 2022, a student-run club called the Interact Club held a barbeque fundraiser.  Tickets for the fundraiser were sold in the high school office and at a local dance studio.  The record reflects that this dance studio periodically uses respondent’s facilities.  The first appeal ensued.

In the first appeal, petitioner contends that the club’s fundraiser was unlawful because its proceeds directly benefited the dance studio.  He further contends that respondent improperly allowed the dance studio to use district facilities on April 25, 2022.  Finally, petitioner argues that respondent should not engage the services of the owner of the dance studio because her rates are higher than other consultants who provide similar services through the local Board of Cooperative Educational Services (“BOCES”).[1]  Petitioner seeks orders precluding the dance studio owner from contracting with the district or accessing school property, multiple investigations, board training, and restitution to taxpayers.

Respondent contends that the appeal must be dismissed for, among other things, failure to join the owner of the dance studio as a necessary party.  Respondent also contends that the fundraiser was lawful because, despite the text of a flyer to the contrary, its proceeds solely benefitted a scholarship fund and the sale of tickets complied with Department guidance.

Following respondent’s answer in the first appeal, petitioner filed a second appeal and application seeking the removal of the superintendent, assistant superintendent, respondent’s president, and the advisor for the Interact Club for committing “perjury” in connection with the first appeal, among other allegations.  Respondents deny these allegations.

I must first address two matters involving the scope of the record.  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 replies submitted in both appeals, 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 answers.

Additionally, respondents requested to serve a late memorandum of law in the first appeal.  Section 276.4 of the Commissioner’s regulations required respondents to serve a memorandum of law on petitioner within 50 days after service of the petition.[2]  In my discretion, respondents’ application is granted; thus, the memorandum of law has been accepted into the record.

The first appeal must be dismissed for failure to join a necessary party.  A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such.  Joinder requires that a party be clearly named in the caption of the appeal and served with a copy of the notice of petition and petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). 

In the first appeal, petitioner seeks extensive relief related to the owner of the dance studio, including an order precluding her from contracting with the district or from accessing school property.  I find, therefore, that the rights of the owner would be adversely affected by an order in favor of petitioner.  Petitioner’s explanation for neglecting to join the owner—that counsel for respondent would necessarily be required to represent her, resulting in an unwarranted expense of public money—is inaccurate and unrelated to the standard requiring joinder of a necessary party.[3]  As such, the appeal must be dismissed (Appeal of Qualite Sports Lighting, LLC, 57 Ed Dept Rep, Decision No. 17,411; Appeals of J.R., 56 id., Decision No. 17,076).[4]

For the benefit of the parties, I note that petitioner’s principal claim—a violation of 8 NYCRR 19.6—is without merit.  The Rules of the Board of Regents prohibit the “direct solicitation of charitable donations from children in the public schools on school property during regular school hours ...” (8 NYCRR 19.6).  “[T]he rule does not prohibit the sale of goods or tickets for concerts or social events where the proceeds go to charity, because the purchaser receives a consideration—the concert or social [event]—for the funds expended” (Appeal of Ponte, 38 Ed Dept Rep 280, Decision No. 14,033).

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).

Petitioner submits evidence that the Interact Club distributed a flyer for the event indicating that the club would “donate 100% of the proceeds to the [dance studio] to fund both [a] tap dance festival” and a scholarship fund.  In an affidavit, the superintendent acknowledges that this statement was in error.  He submits a copy of an email dated April 6, 2022 in which he requested that the Interact Club’s faculty advisor correct the flyer to indicate, instead, that all proceeds would go to the scholarship fund.  Petitioner has not proven his contention that this was a subterfuge, or that the proceeds, in fact, went to the dance studio.[5]  Accordingly, petitioner has not proven a violation of Rule 19.6.

Given the above conclusions, petitioner’s application for removal in the second appeal and application must be denied.  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).  

Petitioner alleges, without proof, that respondents engaged in a “concerted effort to cover up [their] many transgressions” related to the fundraiser.  For example, petitioner contends that the faculty advisor for the Interact Club “hastily gather[ed] student [] signatures [for a] staff drafted document without indicating ... the content therein” because the advisor handwrote the meeting minutes.  Similarly, petitioner admits that he “do[es] not know for certain” that the board president acted improperly, but complains that she “was absolutely no aid in seeking the truth ....”  This speculation does not constitute proof that any respondent violated the Education Law.  Accordingly, the application for removal must be denied (Application of Brentwood Youth Activities, Inc., 59 Ed Dept Rep, Decision No. 17,821).

Finally, the individuals named as respondents in the removal application request certification that they acted in good faith pursuant to Education Law § 3811 (1).  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1).  The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  Given that there has been no finding of bad faith, I hereby certify that the individual respondents acted in good faith. 

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

THE APPEALS ARE DISMISSED.

THE APPLICATION IS DENIED.

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