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May 09, 2013

Application seeking the removal of the school superintendent found fatally defective because it failed to contain the language required by the Commissioner’s regulations


Application seeking the removal of the school superintendent found fatally defective because it failed to contain the language required by the Commissioner’s regulations*
Decisions of the Commissioner of Education, Decision No. 16,479

Linda Wallace, alleging that school superintendent Randy Richards made “inaccurate, misleading and designed to intimidate voters” in connection with the adoption of a school budget, asked the Commissioner to remove Dr. Richards from his position.

The Commissioner dismissed Wallace’s application for technical reasons, explaining that Wallace's application for Dr. Richards’ removal must be denied because the notice of petition was defective.

Here the Commissioner’s regulations require that the notice accompanying a removal application specifically advise the school officer that an application is being made for his or her removal from office (see 8 NYCRR §277.1 [b]). Here, however, Wallace failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.

The Commissioner said that “A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.

Notwithstanding the dismissal of Wallace’s application on procedural grounds the Commissioner noted that had Wallace’s the application not been denied on procedural grounds, it would be denied on the merits.

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

Further, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The record indicates that Dr. Richards “adequately explained the basis for his statements regarding the impact of a contingency budget in relation to current levels of district funding. Although Wallace may disagree with Dr. Richard’s approach, she has not demonstrated that [Dr. Richard’s] action was motivated by a wrongful purpose."

To the extent that Wallace sought a determination as to whether Dr. Richards’ actions were in the best interest of the district, the Commissioner said this aspect of the appeal must be dismissed as it is well established that the Commissioner “does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310.”

Turning to a “final” administrative matter, the Commissioner noted that Dr. Richards had requested that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1) to him. Such certification is solely for the purpose of authorizing the board to indemnify Dr. Richards for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a school district officer.

It is appropriate to issue such certification unless it is established on the record that the requesting officer acted in bad faith. In view of the fact that Wallace’s application was dismissed on procedural grounds and there was no finding that Dr. Richards acted in bad faith, the Commissioner certified that “solely for the purpose of Education Law §3811 [Dr. Richard] appears to have acted in good faith.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume52/documents/d16479.pdf


* See, also, Application of Stacia Kroniser, Decisions of the Commissioner of Education, Decision No. 16,469, posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/documents/d16469.pdfand the Appeal of Stacia Kroniser, Decisions of the Commissioner of Education, Decision No. 16,470, posted on the Internet at:  
http://www.counsel.nysed.gov/Decisions/volume52/documents/d16470.pdf


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