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Wednesday, August 10, 2011

Removing a member of a school board


Removing a member of a school board
Matter of Lilker, CEd 14,588

Claiming that there were discrepancies between the published board minutes and audio recordings he made of the same board meeting, Stewart S. Lilker asked the Commissioner of Education to remove members of the Freeport Union Free School District Board of Education and the District Clerk from their respective positions.

As a starting point, the Commissioner noted that Lilker's appeal alleged violations of the Open Meetings Law [Public Officers Law Section 107]. Explaining that the State Supreme Court has “exclusive jurisdiction” over such complaints, the Commissioner said any alleged OML violations could not be adjudicated via an appeal pursuant to the Regulations of the Commissioner, 8 NYCRR 275.

However, said the Commissioner, even if he had jurisdiction, he would dismiss Lilker's appeal on the merits because Lilker “failed to establish facts sufficient to warrant the removal of respondents pursuant to the Education Law Section 306.”

A member of the board of education may be removed from office pursuant to Section 306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty within the meaning of the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education.

Lilker, said the Commissioner, failed to meet his burden of demonstrating that he had “a clear legal right to the relief requested” as well as his burden of demonstrating that board members and the district clerk engaged in willful or intentional misconduct warranting removal from office.

The Commissioner said that the alleged inaccuracies and discrepancies between the published minutes and Lilker's audio recordings are of an administrative nature and do not demonstrate any intentional misrepresentation or attempt to falsify board records.

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