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Barbara Seals Nevergold as President and Member-at-Large of the Board of Education of the City School District of the City of Buffalo. Decision No. 16,595 (March 12, 2014) Hodgson Russ, LLP, attorneys Kristoff, Esq., of counsel for respondents, Karl W.
KING, JR., Commissioner.--Petitioner seeks the removal of Dr. Barbara Seals Nevergold (“Nevergold”) as President and Member-at-Large of the Board of Education of the City School District of the City of Buffalo (“Board”) (collectively “respondents”). The application must be denied. Petitioner, a member of the Board, asserts that respondent should be removed from her position as president and member of the Board pursuant to Education Law §306 for wilfully violating the “law and Board Policy.” Specifically, petitioner claims that Nevergold violated Board Policy #1240, which states, among other things, that the Board “has the power to fill any vacancy, by a majority vote,” and that the person appointed “shall hold his/her office until the next Annual Election of Board Members.” The record indicates that respondent Nevergold was appointed by the Board in December 2011 to fill a vacancy created by the resignation of an at-large member of the Board, whose five-year term was to expire in 2014. Petitioner claims that, by failing to run for election on May 7, 2013, Nevergold violated Board Policy #1240 and has been “wrongfully and illegally” serving as a member of the Board since July 1, 2013. On or about December 3, 2013, respondent Nevergold served an answer and the Board simultaneously requested permission to intervene as a respondent in this application. Pursuant to §275.1 of the Commissioner’s regulations and by letter dated December 31, 2013, my Office of Counsel notified the parties that the Board would be permitted to intervene and was required to serve its answer by January 8, 2014. On January 8, 2014, the Board advised my Office of Counsel that it would not be
submitting a further answer or any additional papers beyond those already submitted on behalf of respondent Nevergold. In their answer, respondents contend that the application is untimely. Respondents also claim that the application fails to state a claim upon which relief can be granted because, under the circumstances presented here, Education Law §2553(10) requires elections of board members only upon expiration of the term, and the term for the seat Nevergold was appointed to fill does not expire until May 2014. Finally, respondents object to petitioner’s memorandum of law as untimely. I must first address the procedural issues. On or about December 17, 2013, respondents’ attorneys requested permission pursuant to 8 NYCRR §276.5 to submit an affidavit of the Director of Management Services for the Erie I Board of Cooperative Educational Services (“BOCES”), which they claim they were unable to submit with their answer. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). Petitioner does not object to respondents’ request or to the affidavit itself. The affidavit does not raise new issues, but instead elaborates on the intent of BOCES in drafting Board Policy #1240 – an issue that was already raised by respondents in their answer. Therefore, absent any evidence that petitioner would not be prejudiced by my review of the director’s affidavit, I have considered it. On December 30, 2013, my Office of Counsel received an affidavit and memorandum of law from petitioner, together with an affidavit of service indicating that such materials were served by mail on December 27, 2013. With respect to the affidavit submitted by petitioner, I note that, while it is not labeled as a reply, it appears to be in the nature of a reply as it responds solely to respondents’ affirmative defense that the application is untimely. However, a reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR
§275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710). According to an affidavit of service submitted by respondents, their answer was served by mail on December 3, 2013. Accordingly, any reply should have been served by December 17, 2013, and petitioner’s affidavit in the nature of a reply, which was not served until December 27, 2013, is untimely and has not been considered. Respondents assert that petitioner’s memorandum of law “was due on December 23, 2013, not December 27, 2013.” Pursuant to §276.4 of the Commissioner’s regulations, petitioner’s memorandum of law must be served within 20 days of service of the answer or 10 days after service of the reply, whichever is later. As indicated above, petitioner did not serve a reply within the required timeframes. Where the answer is served by mail, the date of mailing and the four days subsequent thereto shall be excluded in the computation of the 20-day period in which petitioner’s memorandum of law must be served and filed (8 NYCRR §276.4[a]). Here, the answer was served by mail on December 3, 2013 and, in accordance with §276.4(a) of the Commissioner’s regulations, petitioner’s memorandum was timely served by mail on December 27, 2013. Accordingly, I have considered it. Respondents assert that the appeal is untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The 30-day limitation period also applies to a removal application made 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). In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).
Although not entirely clear, petitioner appears to argue in the petition that the appeal is timely because the alleged conduct giving rise to the application constitutes a continuing wrong. The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901). The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects 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, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]). Petitioner challenges respondent Nevergold’s continued membership on the board as unlawful. If respondent Nevergold was, in fact, required to run for election in May 2013, as petitioner alleges, her continued membership on the Board is a continuing wrong subject to appeal at any time. Accordingly, I will not dismiss the application as untimely (see Appeal of Jackson, et al., 38 Ed Dept Rep 741, Decision No. 14,131; Application of the Board of Cooperative Educational Services, Sole Supervisory District of Clinton, Essex, Warren, and Washington Counties, 38 id. 224, Decision No. 14,020). I also note that petitioner claims in his memorandum of law that his delay in commencing this application should be excused for “good cause” shown because he did not become aware of respondent Nevergold’s “continued illegal occupancy” of her board seat until November 2013 and that he initiated this application upon such discovery. As noted above, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810). I also note that the requirement for pleading “good cause” pursuant to §275.16 of the Commissioner’s
regulations does not apply when a §306 application has been commenced within 30 days after petitioner’s good faith discovery of misconduct allegedly providing a basis for removal (In the Matter of an Appeal Against the Actions of the Board of Cooperative Educational Services, Third Supervisory District, Suffolk County, New York, et al., 32 Ed Dept Rep 519, Decision No. 12,905). In any case, based on the applicability of the continuing wrong theory as described above, I find that the application was timely commenced and therefore need not consider whether petitioner has established that the application was commenced within 30 days after his good faith discovery of the alleged misconduct. Nevertheless, the application must be denied. A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729). 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). In this proceeding, petitioner seeks only the removal of respondent Nevergold from office pursuant to Education Law §306. However, other than petitioner’s conclusory assertions, the record contains no evidence that respondent Nevergold engaged in any wilful violation or neglect of duty as required for removal by Education Law §306. Indeed, petitioner’s only factual allegation as to wrongful action or inaction on Nevergold’s part appears to be that she “was not a candidate in the Board elections held on May 7, 2013.” In essence, petitioner’s claims relate to actions by the Board in appointing Nevergold for a term that extended beyond the May 2013 Board elections and not requiring that her seat be filled by election in May 2013. On this record, petitioner has not alleged or proven that Nevergold acted in violation of law or neglect of duty and therefore has failed to state a claim upon which the relief
sought – Nevergold’s removal pursuant to Education Law §306 – can be granted. I note that, although the Board has been permitted to intervene in this matter, petitioner seeks no relief as against it, nor could he properly do so in the context of a removal application brought pursuant to Education Law §306. While petitioner, who is an attorney and does not appear pro se in this matter, could have initiated an appeal pursuant to Education Law §310, from the Board’s action regarding Nevergold’s appointment and/or the Board’s actions relating to the election held by the Board in May 2013, he did not do so. A §306 removal application is not the appropriate forum in which to adjudicate such claims. Although the application must be denied, one administrative matter remains. Respondents have requested in their memorandum of law that I issue a certificate of good faith pursuant to Education Law §3811(1). Such certification is solely for the purpose of authorizing the board to indemnify respondent Nevergold for legal fees and expenses incurred in defending a proceeding arising out of the exercise of her powers or performance of duties as a board member. It is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Application of Schenk, 47 id. 375, Decision No. 15,729; Application of Lilly, 47 id. 307, Decision No. 15,705; Application of Berman, 46 id. 378, Decision No. 15,537). In view of the fact that the application here is denied and there has been no finding that respondent Nevergold acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that respondent Nevergold appears to have acted in good faith (Application of Wallace, 52 Ed Dept Rep, Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265). In light of the foregoing disposition, I need not address the parties’ remaining contentions. THE APPLICATION IS DENIED. END OF FILE
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