A member of school board may be removed from his or her office after three successive unexcused absence from board meetings

A member of school board may be removed from his or her office after three successive unexcused absence from board meetings

Decision of the Commissioner of Education, Decision No. 17,544

Brian Butler appealed the decision of the Board of Education of the Massapequa Union Free School Districtto declare his position on the Board vacant and remove him as a board member to the Commissioner of Education. The Commissioner dismissed Butler's appeal.

The record before the Commissioner indicated that Board's president asked all board members to remain for a discussion following a board’s public and executive sessions to address Butler's alleged "public Facebook posts calling for the dismissal of the School District's Superintendent and his references to her as ‘Kim Jong Un,’” for the purpose of discussing "how we could all work together as a team, despite differences in policy, in a respectful and civil way, without name calling and personal attacks.”

The Commissioner's decision also included two footnotes reporting:

[1] The record indicates that the School District's recent efforts to reorganize the grade configuration of its schools resulted in considerable animus within the community and among individual board members and the superintendent and that a grade configuration matter came before the Commissioner in three separate appeals on which the Commissioner issued decisions, Appeal of Paglia, et al., 57 Ed Dept Rep, Decision No. 17,251; Appeal of Kaufmann, et al., 57 id., Decision No. 17250; and Appeal of Pulizzi, et al., 57 id., Decision No. 17,249.  The record also indicated that Butler made known on social media in profane and incendiary ways his personal feelings regarding the superintendent and others with whom he disagreed on policy matters; and

[2]  The School Board contended that Butler also failed to attend three consecutive meetings on April 4, April 12 and April 17, 2018 without a valid excuse and that Butler, in an affidavit, asserted that he missed the April 4, 2018 meeting because he was in California and advised the board president of that prior to the meeting.  However, in light of Butler's failure to attend five consecutive meetings without a valid excuse in May-June 2018, which alone is sufficient grounds for vacating Butler’s position pursuant to Education Law §2109, the Commissioner said that she did not need not consider whether the Board properly determined that Butler failed to present a valid excuse for missing the three consecutive meetings in April 2018.

The Board's president had sent a letter to Butleroffering him "an opportunity to attend a special meeting of the board on June 28, 2018 at which [Butler] would be asked to provide an explanation for his five most recent consecutive absences.  The letter further stated that if Butlerfailed to provide valid or reasonable excuses for his absences, the board would have “no choice” but to declare his seat vacant.

Butler responded that he would not attend the June 28 meeting because of “a prior business arrangement" but that he would attend a future meeting of board to explain the reason for his absences, "but only if the board president and trustee Baldinger did not attend.  

By letter dated June 29, 2018, the School District's district clerk notified Butler that the Board had declared his seat vacant because of his habitual absences and that, "effective immediately," he was no longer a board trustee.

In his appeal Butlercontended that "he provided [the Board] with a good and valid excuse for his failure to attend board meetings; i.e. fear for his personal safety" and that "the board president did not object to his absences."

In rebuttal, the Board argued that Butler"failed to provide a good and valid excuse to the other trustees for his absence from multiple consecutive board meetings" and thus "the decision to vacate [Butler's] seat on the board was a proper exercise of its authority that should not be disturbed."

Noting that Education Law §2109 provides, in pertinent part, that a board member who “refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse therefor to the other trustees vacates his office by refusal to serve,” the Commissioner observed that 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 Commissioner, noting that a board of education makes [1] the determination as to whether a trustee has rendered a valid excuse for missing board meetings and [2] that the excuse tendered is satisfactory to the board, explained the for the Commissioner to overturn the board’s determination, the petitioner must demonstrate that the board was arbitrary and capricious or otherwise abused its discretion in determining that the petitioner had vacated his or her seat.

It is undisputed that Butlerrefused or neglected to attend more than three successive board meetings, and that he was duly notified of such meetings.  It was therefore incumbent on Butler to demonstrate that he provided the other trustees a good and valid excuse for his frequent absences from board meetings.  The Commissioner said that on the record before her, Butlerfailed to meet that burden.

On this record, said the Commissioner, Butler failed to meet his burden of proving that he had a valid excuse for failing to attend the five consecutive board meetings between May 21 and June 21, 2018, nor has Butler demonstrated that the Board's rejection of his proffered excuse - his purported fear of physical harm arising out of a single remark by a fellow trustee made in a heated discussion on March 15, 2018 - was arbitrary and capricious or an abuse of discretion.

Accordingly, ruled the Commissioner, "... based on the record before me, I cannot conclude that [the Board's] decision to declare [Butler's] position on the board vacant pursuant to Education Law §2109 and to remove him as a board member was arbitrary, capricious or an abuse of its discretion."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17544