School Board asks the Commissioner of Education to remove the president of the school board from the position
City of Gloversville School Board v Semione, Decisions of the Commissioner of Education, Decision 16,857
In this appeal to the Commissioner of Education the Board of Education Gloversville City School District [Petitioner] sought the removal of Peter Semione as a board member and president of the school board.
Petitioner’s application was based on allegations that Semione made inappropriate public and private statements to other board members that Petitioner characterized as having “engaged in a course of conduct which is a distraction to the board and the regular conduct of its business.”
Addressing a number of procedural issues, the Commissioner ruled that the application must be denied as untimely. The Commissioner explained that such an appeal must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown. Further, said the Commissioner, the 30-day limitation period also applies to a removal application made pursuant to Education Law §306.*
Here the specific actions cited by Petitioner in support of its application occurred on two days, August 31 and September 1, 2012. The affidavit of service indicates the appeal was served on November 27, 2012, beyond the required 30-day period. Although Petitioner cites the service date as November 21, 2012, the Commissioner noted “that date is also outside the required 30-day period.”
Petitioner also asserted that it had to retain outside legal counsel because the school district’s attorney recused himself, thus contributing to the delay. However, said the Commissioner, Petitioner fails to indicate when that recusal took place, nor is Petitioner’s decision to retain outside counsel, without further details, sufficient to excuse the delay.
Finally, the Commissioner said that the appeal must also be dismissed as moot, taking judicial notice that respondent Semione is no longer a member of the board and only matters in actual controversy are ripe for appeal, explaining that a decision on a state of facts which no longer exist or which subsequent events have laid to rest will not be addressed.
Turning to the merits of Petitioner’s appeal, the Commissioner said “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, said the Commissioner, “Removal may be warranted where a board member's improper conduct occurs during a board meeting and disrupts the meeting or interferes with the board's ability to function.”
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. Noting that Respondent denied engaging in the alleged conduct the Commissioner said that aside from statements set out in its petition, Petitioner failed to submit any supporting affidavits from any board member establishing the facts alleged – that they were harassed or threatened by Respondent or that the board could not function as a result of his alleged conduct.
In addition, the Commissioner observed that although Semione may have used profanity in speaking to several board members, “the use of profanity and failure to apologize is not by itself, enough to warrant removal.”
Accordingly, the Commissioner ruled that Petitioner has not carried its burden in establishing the facts on which it bases its application.**
The Commissioner dismissed Petitioner’s application and dismissed the appeal.
* In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted
** The decision also notes that Petitioner alleged that Respondent had engaged in a willful violation of law warranting removal, i.e., his conduct also constituted Aggravated Harassment in the second degree, as defined in §240.30 of the New York State Penal Law but failed to submit any evidence of pending charges or a conviction against Respondent and has therefore not carried its burden of proof in this regard.
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