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Monday, March 19, 2012

School employees ask the Commissioner of Education to remove members of the same family simultaneously serving on a school board from the Board

School employees ask the Commissioner of Education to remove members of the same family simultaneously serving on a school board from the Board
Appeal of Kevin Reis and Joseph R. Argus from action of the Board of Education of the Taconic Hills Central School District regarding conflicts of interest, Decisions of the Commissioner of Education, Decision #16,335

In this appeal Taconic Hills CSD employees Kevin Reis and Joseph R. Argus filed an application with the Commissioner of Education seeking the removal of Donald McComb, Robert McComb and George Lagonia, Jr. as board members and the removal of Donald McComb and George Lagonia, Jr. as varsity coaches.

§2103.3 of the Education Law provides that “ Not more than one member of a family shall be a member of the same board of education in any school district”

Reis and Argus filed an appeal with the Commissioner of Education contending that Board incumbents Robert McComb, a member of the Taconic Hills CSD Board of Education since 2007, Lagonia and Donald McComb (the brother of Robert McComb) board members since 2008, were serving in such capacities in violation of §2103.3.

Further, Reis and Argus claimed that Lagonia and Donald McComb were appointed to varsity coaching positions by the Board, which they accepted as volunteers.

Essentially Reis and Argus argued that Donald McComb and George Lagonia were ineligible to simultaneously hold positions as members of the board, citing §2103.3, and as to their serving as coaches for the district, they also violated General Municipal Law §801.* As a remedy, they asked the Commissioner to remove the three board members from their positions as members of the board and that the commissioner remove Donald McComb and George Lagonia from their coaching positions.

The board raised a number of procedural defenses, contending that the appeal and application must be dismissed for failure to state a cause of action and for failure to comply with the notice requirements of 8 NYCRR §277.1(b; that the petition and application were not properly served, and that Reis lacks standing to file the application and appeal. 

The Commissioner did not consider the merits of the allegations made by Reis and Argus, holding that “To the extent petitioners seek the removal of the individual respondents from the board, the appeal must be dismissed for failure to comply with §277.1 of the Commissioner’s regulations.”

The Commissioner explained that §277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office.  In this case, petitioners failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310. 

A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent

In addition, the Commissioner said that “The appeal and application must also be dismissed for improper service upon the individual respondents and, as a consequence, for failure to join them as necessary parties,” pointing out that §275.8(a) of the Commissioner’s regulations requires that an appeal be commenced by personal service of a copy of the petition upon each named respondent or, “if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent’s residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the commissioner.”

Here, however, the Commissioner’s Office of Counsel did not authorize alternative service. Accordingly, said the Commissioner, no personal service was made on the individual respondents by means of the service attempted by Reis and Argus and thus they failed to obtain jurisdiction over them for this reason as well.

Turning to another issue, the request filed by the members of the board seeking “a certificate of good faith pursuant to Education Law §3811(1),” the Commissioner said that “Such certification is solely for the purpose of authorizing the board to indemnify the individual respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties as board members.”

Noting that it was appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith, the Commissioner said in this instance “there has been no finding that the individual respondents acted in bad faith,” and certified “solely for the purpose of Education Law §3811(1) that they are entitled to receive the requested certificate.”

* §801of the General Municipal Law prohibits public officers and employees having a “conflicts of interest” in performing of certain official duties.

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