Application of BRAEDON NANNA for the removal of Donald Dawes as a member of the Board of Education of the City School District of the City of Utica.

Decision No. 18,523

(November 18, 2024)

ROSA., Commissioner.--Petitioner seeks removal of Donald Dawes (“respondent”) from office as a member of the Board of Education of the City School District of the City of Utica (the “board”).  The application must be denied.

Bruce Karam, the former superintendent of the Utica City School District, was arrested in November 2023 and charged with various crimes related to the misuse of taxpayer funds.[1]  The board terminated the former superintendent’s employment on November 27, 2023 in a 5 to 2 vote.  Respondent was one of the board members who opposed this motion.  This application ensued. 

Petitioner alleges that respondent violated the law in connection with his relationship with the former superintendent as detailed below.

Respondent denies petitioner’s allegations and argues that the application must be dismissed as untimely and for lack of personal service.

The application must be 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).  It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner (Application of T.L., 64 Ed Dept Rep, Decision No. 18,474; see also Appeal of J.B., 62 Ed Dept Rep, Decision No. 18,245).  A removal application may nevertheless be considered timely if 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). 

Each of petitioner’s allegations occurred more than 30 days prior to the commencement of this application.  Petitioner alleges that respondent:

• Impermissibly accepted a “gift” from the former superintendent in the form of campaign flyers to support his board candidacy.  Petitioner alleges that he obtained knowledge of this claim from a November 22, 2023 news article.
• Failed to file a 2021 campaign contribution statement.  A claim alleging such an omission would have accrued after the final statement was or was supposed to have been filed (Education Law § 1529 [1]; see Application of P.P., 57 Ed Dept Rep, Decision No. 17,321).[2] 
• Made inaccurate statements in connection with a service purchased by the district.  The most recent action of which petitioner complains, a public vote, occurred in March 2022.
• Disclosed information from executive session in an affidavit submitted in connection with a lawsuit filed by the former superintendent.  The affidavit was executed on December 9, 2022.
• Unreasonably voted against termination of the superintendent’s contract and the appointment of several interim or acting superintendents.  The most recent public vote in this regard occurred on November 27, 2023.

Petitioner asserts that the delay in bringing this application was outside of his control and should be excused because:  (1) the district took two weeks to provide him with the minutes from the November 27 meeting; (2) he first attempted personal service on December 23, but completing personal service was difficult during the holidays; (3) respondent does not utilize email, which prevented petitioner from promptly effectuating service[3]; and (4) petitioner did not learn of respondent’s failure to file a 2021 campaign expenditure and contribution report until December 15, 2023, when petitioner’s Freedom of Information Law request for the same was denied.

I am unpersuaded by these explanations.  Respondent’s vote at a public meeting on November 27 provided petitioner “with constructive notice thereof” (Application of T.L., 64 Ed Dept Rep, Decision No. 18,474).  Additionally, even if I excused petitioner’s failure to serve respondent by email, he offers no explanation for the one-week delay between the time that I granted his application and the date that he mailed the petition to respondent.  Finally, as indicated above, claims regarding the absence of a statement of campaign expenditures and contributions accrued years before service of the instant petition.  Accordingly, the application must be denied as untimely (Appeal of O’Brien, 51 Ed Dept Rep, Decision No. 16,316; Application of Berman, 46 id. 378, Decision No. 15,537).

Petitioner additionally argues that respondent’s unwavering loyalty to the former superintendent presents a continuing wrong.  Pursuant to the continuing wrong doctrine, the 30-day time limitation does not bar an appeal from an ongoing action that results in a continuous violation of law, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919).  The doctrine does not apply where a petitioner challenges a single discrete action, inaction, or decision and the resulting effects, even if continuous, are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, art 78 dismissed Matter of Reyes v Mills [Sup Ct, Albany County 2009, Zwack, J.]).

The “discrete acts of misconduct ... described herein” do not constitute a continuing wrong (Appeal and Application of A.B., 60 Ed Dept Rep, Decision No. 18,010).  Moreover, to the extent that petitioner complains of an ongoing quid pro quo relationship between respondent and the former superintendent, the former superintendent is no longer employed by the board.  Accordingly, I find that the continuing wrong doctrine does not apply (Application and Appeal of P.P., 57 Ed Dept Rep, Decision No. 17,321; Application of Ayers, 48 id. 350, Decision No. 15,883).

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

THE APPLICATION IS DENIED.

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