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August 05, 2010

Declaring a school board member’s office vacant by reason of his or her unexcused absences

Declaring a school board member’s office vacant by reason of his or her unexcused absences
Margaret McQuaid Kaplan v Board of Education of the East Meadow Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,113

Margaret McQuaid Kaplan was elected as a member of the East Meadow Union Free School Board in May 2007. On September 24, 2008, the Board held a special meeting at which it initiated an independent investigation into allegations of impropriety involving Kaplan.

The following time line sets out the next steps taken by the parties:

1. On October 21, 2008, the Board met to discuss the investigation.

2. On October 22, 2008, Kaplan was hospitalized.

3. On October 28, 2008, the Board held a special meeting and schedules Kaplan's hearing concerning the allegations for November 17, 2008.

4. Kaplan was released from the hospital on November 1, 2008.

5. Kaplan retained counsel at 6:00 p.m. on November 17, 2008.

6. Kaplan's attorney arrived late to the November 17, hearing and requested an adjournment after the Board’s evidence was presented. The Board denied the requested adjournment.

7. The Board voted, declaring Kaplan’s position vacant by operation of law for repeatedly failing to attend board meetings without valid excuses.

The Board also voted to remove her from office for based on Kaplan’s alleged:

1. Failure to complete required training and/or to provide the required certification for such training;

2. Failure to complete, sign and return to the district’s independent auditor the “Related Party Disclosure Questionnaire;”

3. Public disclosure of confidential and Executive Session information; and

4. Abuse of the authority of her office.

Kaplan appealed the Board’s action to the Commissioner of Education contending that she was not furnished with a copy of the charges filed against her and that she was not allowed to answer the charges in writing. She also denied having committed any acts constituting misconduct and that the charges "were not adequately proven against her."

In addition, Kaplan also argued that that her attorney’s request for an adjournment was improperly denied.

As redress, she asked the Commissioner to direct that a new hearing be conducted and that she be reinstated to her position.

In rebuttal, the Board claimed that the District had provided Kaplan with [1] a notice of the charges and [2] a hearing was held at which all five charges of misconduct against her “were properly sustained.”

As to the issue concerning Kaplan’s unexcused absences from Board meetings, the Commissioner said that Education Law §2109* provides that board members who have failed to attend “three successive meetings of the board of which he** is duly notified, without rendering a good and valid excuse therefore to the other trustees vacates his office by refusal to serve.”***

As to Kaplan's alleged absences from Board meetings, the Board said that it had relied on "an audit memo from the internal auditor" indicating that Kaplan had missed 12 meetings without explanation or excuse during the 2007-2008 school year, including four consecutive meetings during May and June 2008. The Board also said that it had relied on a listing of 2007-2008 Board meetings and Kaplan’s absences signed by the Board secretary with a statement that she received no advance notification that Kaplan would not be attending those meetings.

Noting that although Kaplan had missed 13 of the 2007-2008 meetings, the Commissioner found that Kaplan’s absences from meetings on May 22 and June 5, 24 and 29, 2008 did not constitute absences from consecutive meetings as there was an intervening June 10, 2008 meeting for which Kaplan had not been marked absent.

However, said the Commissioner, Kaplan had, in fact, missed three consecutive meetings on a different occassion, i.e., meetings held on September 4, 6 and 18, 2007.

The Commissioner said that Kaplan had not offered any evidence either at the Board’s hearing or in her appeal to the Commissioner rebutting the Board’s evidence that she failed to attend the three meetings in September 2007 without notification or that she was unable to attend these meetings, "other than her own broad assertions that her absences were either religious observances or [of a] medical necessity.”

Accordingly, the Commissioner, focusing solely on the issue of Kaplan's absences from Board meetings, dismissed her appeal, commenting that the Board was neither arbitrary nor capricious in finding that Kaplan vacated her office by failing to attend three consecutive meetings without adequate documentation or excuse by operation of law as provided by Education Law §2109.

* §2109 of the Education Law provides as follows: A trustee of a common school or union free school district who publicly declares that he will not accept or serve in the office of trustee, or refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse therefor to the other trustees vacates his office by refusal to serve

** §22 of the General Construction Law provides that "Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.]

*** Concerning the issue of an individual not attending meetings scheduled by a public entity, Public Officers Law §30.3 provides that in the event “any member of a board, commission, committee or authority, holding office by appointment of the governor, fails to attend three consecutive regular meetings of such board, commission, committee or authority, unless such absence is for good cause and is excused by the chairman or other presiding officer thereof, or, in the case of such chairman or other presiding officer, by the governor, the office may be deemed vacant for purposes of the nomination and appointment of a successor.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16113.htm

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