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May 18, 2020

Disclosing matters discussed in an executive session to the public

In this appeal the Appellate Division was asked to vacate a determination of the Commissioner of Education [Commissioner] where the penalty imposed was the removal of a member of a school board [Member] from the school board [Board]. The Board had asked the Commissioner to remove Member from his position following the publication of [1] an article Member had penned that many considered to be racially offensive and [2] an article in which Member revealed certain information concerning matters that the Board had discussed in executive sessions.*

The Board met with outside counsel and was advised that Member could not be removed from the school board for his allegedly racially offensive comments because such comments were protected speech under the First Amendment. However, the Board was further advised that Member's disclosure of confidential information to the public obtained in the course of an executive session was a removable offense. 

The Board subsequently met and passed a resolution authorizing the filing of a petition with the Commissioner seeking Member's removal from the Board based on his disclosure of "confidential information" discussed during an executive session of the Board. The Board's application filed with the Commissioner alleged that Member had disclosed confidential information he had obtained during an executive session meeting concerning [1] certain litigation involving a former contractor and the school district; [2] collective bargaining negotiations with the representative of school district employees in a negotiating unit; and [3] a personnel matter.

Following a hearing, although the Commissioner found that Board had failed to establish that Member disclosed confidential information concerning the litigation between the school district and the contractor or a personnel matter, the Commissioner determined that Member had violated General Municipal Law §805-a "by willfully disclosing confidential information concerning the collective bargaining negotiations" and ordered Member's removal from the Board.

Member then commenced a combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment** challenging the Commissioner's determination to remove him from the Board.

After considering two procedural matters, the Appellate Division addressed Member's argument that the Commissioner's determination that Member had disclosed confidential information was not supported by the record. 

Citing Matter of Francello v Mendoza, 165 AD3d 1555 and Matter of State of New York v New York State Pub. Empl. Relations Bd., 176 AD3d 1460, the court explained that its review of an administrative decision made as a result of a hearing was limited to whether the decision was supported by substantial evidence, "which, in turn, depends upon whether there exists a rational basis in the record as a whole to support the findings upon which the determination is based."

Considering the basis for the removal of a member of a board of education, the Appellate Division opined that:

a. pursuant to Education Law §306 (1), a member of a board of education may be removed from his or her position when he or she has been found guilty of "any willful violation or neglect of duty . . . after a hearing;" and

b. a member of a board of education may be removed pursuant to Education Law §2559 for "Willful disobedience of any lawful requirement of the commissioner . . ., or a want of due diligence in obeying such requirement or willful violation or neglect of duty."

Noting that General Municipal Law §805-a[1][b] provides that "such willful violation may include a disclosure of "confidential information acquired by him [or her] in the course of his [or her] official duties or use [of] such information to further his [or her] personal interests," the Appellate Division said that as relevant in this appeal "when a public body conducts an executive session, that meeting is not open to the general public and, therefore, disclosure of the information or discussion that occurred during the executive meeting may be prohibited, and that Public Officers Law Public Officers Law §105[1][e] provides that "A public body may conduct an executive session only for limited purposes, including "collective negotiations pursuant to article [14] of the [C]ivil [S]ervice [L]aw."

The Appellate Division held that the record "supports the Commissioner's finding that [Member's] disclosure of confidential information was willful," including Member's testimony was "evasive and demonstrated a lack of regard for his responsibilities as a member of the [Board]" and the Board's "policy and Code of Conduct, which informed [board] members of their duty to refrain from disclosing confidential information."

Another argument advanced by Member was that the Board "failed to adhere to the procedures required by the Open Meetings Law," contending that this failure made the Board's removal application "ultra vires*** and void" in that the Board failed to have a public meeting and vote for authorization to pursue the removal application based upon the disclosure of confidential information.**** The Appellate Division rejected Member's challenge as not properly before it. 

The court said that to commence a proceeding against a public body, a petitioner must submit a CPLR Article 78 claim within four months "after the determination to be reviewed becomes final and binding upon the petitioner." Here, said the court, the Board held a meeting on January 17, 2017 and authorized the removal application and submitted the petition to the Commissioner on January 18, 2017. At that moment, the removal proceeding commenced and became final and binding on Member and Member's challenge to the alleged unlawful procedure accrued. Member, however, "did not submit a CPLR Article 78 petition to challenge the alleged unlawful meeting within four months thereof and, thus, he is precluded from arguing it in this matter."

After considering and rejecting a number of other arguments relied upon by Member in his challenge to the Commissioner's determination, the Appellate Division concluded that the penalty imposed by the Commissioner, removal of Member from the Board, "was not so disproportionate to the offense as to shock one's sense of fairness and, as such, it will not be disturbed."

* Member expressly stated that the information he was relaying in the published article "was discovered from an executive session."

** The Appellate Division noted that Member's "request for declaratory relief is not authorized in a proceeding transferred pursuant to CPLR 7804 (g) and, thus, that part of the matter must be remitted to Supreme Court for the entry of an appropriate judgment thereon."

*** Acting beyond one's legal power or authority.


**** At an executive session, i.e., "that portion of a meeting not open to the general public," the topics that may be discussed are circumscribed by statute and include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person [Zehner v Bd. of Ed. of Jordan-Elbridge CSD, 91 AD3 1349].

The decision is posted on the Internet at:

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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