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.
Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:
A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. 2100+ page e-book. For more information click on http://thedisciplinebook.blogspot.com/
The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://nylayoff.blogspot.com/
General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://section207.blogspot.com/
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