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Monday, April 05, 2010
Board member acting on the advice of counsel cannot be deemed to have engaged in willful misconduct
Application of Carol Gillen for the removal of Nicholas Mauro as a member of the Board of Education of the City School District of The City of Middletown, Decisions of the Commissioner of Education, Decision No. 16,030
Carol Gillen asked the Commissioner of Education to remove Nicholas Mauro, a member of the Board of Education of the City School District of the City of Middletown from the Board. Without considering the events underlying Ms. Gillen’s application, the decision is instructive as it sets out the criteria considered by the Commissioner in addressing such a petition.
The decision explains:
The Education Law §306 authorizes the Commissioner of Education to remove a member of a board of education for a willful violation or neglect of duty under the Education Law for a willful disobedience of any decision, rule or regulation of the Board of Regents or the Commissioner of Education.
To be considered willful, the board member’s actions must have been intentional with a wrongful purpose.
A board member who acts on the advice of counsel has not engaged in a willful violation or neglect of duty justifying removal under Education Law §306.
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and has the burden of establishing the facts upon which the applicant seeks relief.
Addressing the merits of Gellen’s petition, the Commissioner decided that she had not met her burden of demonstrating that Board member Mauro had engaged in any willful or intentional misconduct warranting his removal from office in view of the fact that the record indicated that Mauro had acted on the advice of counsel regarding the matter.
For those interested in reading the full text of the Commissioner’s determination, it is posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume49/d16030.htm.
Handbooks focusing on New York State and Municipal Public Personnel Law:
The Discipline Book - a 448 page e-book focusing on disciplinary actions involving State, municipal and school district public officers and employees. For more information click on http://thedisciplinebook.blogspot.com/
A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/
The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations and summarizing selected court and administrative decisions involving layoff issues. For more information click on http://nylayoff.blogspot.com/
Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions focusing on disability leave issues. For more information click on http://section207.blogspot.com/
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