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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

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.

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