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July 03, 2018

Commissioner of Education found it unnecessary to certify "that respondent appeared to have acted in good faith" for the purposes indemnifying them for costs and expenses

Commissioner of Education found it unnecessary to certify "that respondent appeared to have acted in good faith" for the purposes indemnifying them for costs and expenses
Appeal of William King Moss III regarding a staff appointment, Decisions of the Commissioner of Education, Decision No. 17,409

Although the Commissioner dismissed this appeal for failure to serve a "necessary party" -- here the staff member whose appointment was challenged by Mr. Moss -- the Commissioner addressed an administrative matter.

The respondents in this appeal to the Commissioner had requested that the Commissioner "certify that “all board members” and the superintendent acted in good faith within the meaning of Education Law §3811(1) thereby authorizing the board to indemnify certain individuals for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties.
 
Education Law §3811, in relevant part, provides that "Whenever the trustees or board of education of any school district ... [shall] defend any action brought against them ...  all their costs and reasonable expenses, as well as all costs and damages adjudged against them, shall be a district charge and shall be levied by tax upon the district."

Although the Commissioner observed that is appropriate to issue such certification unless it is established on the record that the requesting respondent[s] acted in bad faith, in this instance the Commissioner found it unnecessary to so certify because, in the words of the Commissioner, respondent’s costs in defending this proceeding are, by operation of statute, a cost upon the district, and no claims are interposed against any individual board members."

Accordingly, as respondent’s costs in defending an action or proceeding against the board are deemed a cost upon the district by Education Law §3811 and no individual board members are a party to this appeal, the Commissioner found that she "need not certify that respondent appeared to have acted in good faith."

In addition, the Commissioner found it unnecessary to grant respondent’s request with respect to the superintendent as he is not a party to the instant proceeding and, thus, was  not obligated to defend himself within the meaning of Education Law §3811.

The decision is posted on the Internet at:





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