October 30, 2017

School board seeks to remove a sitting member from the board for alleged "official misconduct"

School board seeks to remove a sitting member from the board for alleged "official misconduct"
Decisions of the Commissioner of Education, Decision No. 17,204

The School Board [Board] held a special meeting at which it voted to pursue removal charges against a sitting member of the board [Member]* for alleged "official misconduct." Member did not attend the special meeting at which the Board approved three motions, all by a 4-2 vote, ** which, respectively:

1. Charged Member with official misconduct pursuant to Education Law §1709(18);

2. Appointed a board attorney to prosecute the charges; and

3. Designated an attorney to serve as a hearing officer for the removal hearing.

Member was subsequently served with disciplinary charges that set out "twelve specifications of misconduct [that] alleged numerous incidents in which [Member], among other things, berated or verbally attacked district personnel, invaded the personal space of others, refused to comply with orders, improperly photographed personnel records and improperly destroyed a document."

In response, Member filed an appeal with the Commissioner of Education challenging the Board's action, contending:

[1] The Board "lacked sufficient votes to approve charges against [Member] because [the Board's President] ... was biased and, therefore, should have been disqualified from voting"; 

[2] "The charges do not allege official misconduct;" and

[3] [The charges] "[d]o not sufficiently identify specific factual details which would afford [Member] an opportunity to prepare a defense."

Addressing Member's argument that the Board "lacked sufficient votes to approve charges" because the Board President "was biased*** and, therefore, should have been disqualified from voting," the Commissioner first noted that "a distinction must be drawn between a board member’s vote to authorize removal proceedings (the “initiation level”) and his or her vote to sustain charges of official misconduct following a full and fair opportunity for the subject of such charges to refute them (the “final determination level”)"

Although "a board member harboring an 'adverse animus' should not be allowed to participate in the 'decision-rending' aspect of a removal proceeding," the Commissioner noted that Member cited "no authority indicating that this standard is applicable to a board member’s vote to initiate removal proceedings." In other words, a board member may participate in activities leading to, and making, the decision to file disciplinary charges against an individual but then he or she should recuse himself or herself from any and activities involving or related to going forward with the disciplinary action.

Accordingly, the Commissioner said that she found that Member had tried, and failed, to meet Member's burden of demonstrating that the Board President should have been disqualified at the initiation of disciplinary action level.

Turning to Member's allegation that the Charge and Specifications were defective, the Commissioner said she found no merit in Member's claim that the statement of charges is deficient. "On the record before me," said the Commissioner, Member was  "afforded sufficient due process to satisfy this requirement and found that "the statement of charges was sufficiently detailed so as to apprise [Member] of the alleged official misconduct which would be at issue at the hearing." In the words of the Commissioner, "[e]ach charge identified the date when the alleged conduct occurred and a specific description of the objectionable conduct.

Finding that Member's claims were "without merit," the Commissioner dismissed Member's appeal.

* Education Law §1709(18) authorizes the members of a Board "To remove any member of their board for official misconduct. But a written copy of all charges made of such misconduct shall be served upon him [or her] at least ten days before the time appointed for a hearing of the same; and he [or she] shall be allowed a full and fair opportunity to refute such charges before removal.

**  The decision notes that "[a]s relevant to this appeal," the Board President was one of the four board members who voted in favor of the motions.

*** In support of this contention, Member refereed to and submitted numerous newspaper articles and public statements detailing the acrimonious relationship between various board members and the superintendent.  In particular, Member complained of an incident in which the superintendent alleged that his vehicle had been vandalized, and the Board President allegedly told a fellow board member that he believed Member was responsible for the vandalism.  Member  further complained that the Board President told a reporter that Member had been a “headache” since Member took office and that Board President is referenced within some of the charges against Member.  The Board denies in its answer that the Board President speculated that Member damaged the superintendent’s vehicle and, in an affidavit, Board President generally averred  that he is not biased against Member.

The decision is posted on the Internet at: