Appeal of JAROD B. MORRIS from action of the Board of Education of the Wyandanch Union Free School District regarding his removal as a trustee.

Decision No. 18,515

(November 4, 2024)

Quatela, Chimeri PLLC, attorneys for respondent, Andrew K. Martingale and John R. Eyerman, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Wyandanch Union Free School District (“respondent” or “board”) to remove him from office.[1]  The appeal must be sustained in part.

Petitioner was first elected to the board for a term beginning on July 1, 2020.  He was re-elected to a second term commencing on July 1, 2023 and served as board president during the events giving rise to this appeal. 

On May 29, 2024, the board passed a resolution seeking petitioner’s removal for official misconduct (Education Law § 1709 [18]).  Petitioner was served personally with a notice of charges on May 29, 2024.  Respondent designated a hearing officer to preside over the hearing, which was scheduled for June 20, 2024. 

On June 14, 2024, petitioner emailed the hearing officer to request an adjournment of the hearing date.  The hearing officer responded later that day, indicating that he was “not able to postpone the hearing unilaterally.”  The hearing officer recommended that petitioner contact respondent’s counsel, who was copied on the email.  There is no indication that petitioner did so. 

The hearing took place as scheduled, without petitioner in attendance.  On June 26, 2024, respondent voted to remove petitioner in a 4-3 vote.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 18, 2024.

Petitioner asserts that respondent denied him a full and fair opportunity to refute the charges against him.  Petitioner further argues that trustee Walker should not have been permitted to vote in support of his removal because she harbored “adverse animus” toward him.  Petitioner requests restoration to the board.  

Respondent contends that petitioner was afforded sufficient due process prior to his removal.  Respondent also suggests that petitioner abandoned his request for an adjournment because he did not pose such a request to counsel for respondent.

Pursuant to Education Law § 1709 (18), the board of education of every union free school district has the power “[t]o remove any member of their board for official misconduct” after a hearing, provided that:  (1) “a written copy of all charges made of such misconduct shall be served upon [the board member] at least ten days before the time appointed for a hearing of the same”; and (2) the board member receives “a full and fair opportunity to refute such charges before removal” (Education Law § 1709 [18]).

In an appeal 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; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

I find that respondent erred by proceeding with the hearing on June 20, 2024 in petitioner’s absence.  Petitioner wrote to the hearing officer six days prior to the hearing to request an adjournment.  The hearing officer opined that he could not postpone the hearing, and recommended that petitioner contact counsel for respondent.  Neither the hearing officer nor counsel for respondent took any further action until the day of the hearing.  At that time, the hearing officer recounted the above chronology and asked counsel for respondent “how [he] want[ed] to proceed.”  Respondent then presented its case.

 “The grant or denial of a motion for an adjournment for any purpose is a matter resting within the sound discretion of [a] trial court”—or, here, a hearing officer (Matter Steven B., 6 NY3d 888, 889 [2006]).  Contrary to the hearing officer’s position, a hearing officer possesses the inherent power to postpone a hearing (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263; see Appeal of Doe, 56 Ed Dept Rep, Decision No. 17,109; Appeal of L.H., 43 id. 315, Decision No. 15,005).  Thus, I find that the hearing officer erred by failing to grant or deny petitioner’s request for an adjournment.  This resulted in substantial prejudice to petitioner, who, by virtue of his absence, was unable to cross-examine witnesses, examine respondent’s documentary evidence, or introduce witnesses and evidence on his behalf.

Respondent’s contention that due process is served “as long as [a] petitioner receives adequate notice of the charges” only pertains to one of the two statutory rights identified in Education Law § 1709 (18) (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785; Gill v Mills and State Educ. Dept., Sup Ct, Albany County, Bradley, J.; Judgment granted dismissing petition to review; Oct. 6, 2003).  The second is a full and fair opportunity to refute the charges prior to removal, which petitioner did not receive.

Respondent additionally alleges that petitioner’s request for an adjournment constituted “gamesmanship.”  As evidence, respondent complains that petitioner waited over two weeks after receipt of the charges to request an adjournment.  However, there is no required time frame for adjournment requests.  Moreover, while undue delay could constitute a valid basis to oppose or deny a request for an adjournment, it does not justify ignoring such a request.

Finally, petitioner has not met his burden of proving that trustee Walker should have recused herself from voting to remove him due to personal “animus.”  “The mere possession of information regarding conduct of a fellow board member … is not sufficient ground to disqualify those sitting in judgment, although they may also be witnesses at the administrative hearing” (Komyathy v Board of Educ. of Wappinger Cent. School Dist. No. 1, 75 Misc 2d 859, 868 [Sup Ct, Dutchess County 1973]).  Thus, absent proof of bias, the mere fact that trustee Walker testified at the removal hearing does not require her disqualification (Komyathy, 75 Misc 2d 859 [board member could not vote on charges against colleague facing removal where both had engaged in “physical and verbal altercations”; another board member who was a mere “witness” to conduct permitted to vote]; see Appeal of Forcucci, 57 Ed Dept Rep, Decision No. 17,204).  Petitioner’s claims that trustee Walker exhibited bias or threatened to commit physical violence are not supported by the evidence in the record.

In sum, as in Appeal of Johnson, “[t]he entire record demonstrates that in respondent board’s haste to investigate, charge, and remove petitioner from office ... [it] failed to balance its desire to quickly establish its case [] with its need to ensure due process was provided.”[2]  As such, I am constrained to annul respondent’s determination.  This is without prejudice to respondent seeking petitioner’s removal a second time based upon the conduct described in the charges. 

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s June 26, 2024, action in removing Jarod B. Morris as a trustee of the Board of Education of the Wyandanch Union Free School District is hereby annulled; and 

IT IS FURTHER ORDERED that Jarod B. Morris be reinstated to his position as a trustee of the Board of Education of the Wyandanch Union Free School District, effective immediately.

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