Three recent decisions of the Commissioner of Education illustrate an increasing lack of tolerance for board member misconduct.
A board member who violates his/her oath of office, the code of conduct or ethics or who otherwise engages in misconduct may be removed from the board of education in one of two ways.
Removal by the Commissioner of Education
A board member may be removed from office pursuant to New York Education Law § 306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the New York Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education. To be considered willful, the board member’s actions must have been intentional and with a wrongful purpose. School district residents have standing to bring an appeal before the Commissioner seeking a board member’s removal.
Removal by the Board of Education
Pursuant to New York Education Law § 1709(18), boards of education have the power and duty to remove any member of their board for official misconduct. “Official misconduct” is misconduct, which clearly relates to the board member’s official duties, either because of the unauthorized exercise of his/her powers or the intentional failure to exercise those powers to the detriment of the school district. Education Law § 1709(18) imposes no time restriction within which misconduct charges against a board member must be brought.
A board member removed from office is ineligible for appointment or election to any district office for a period of one year from the date of such removal.
Appeal of Williams, Decision No. 18,116 (May 2, 2022)
In Appeal of Williams, a board member served on the board of education of the Greenburgh Central School District from July 2002 until he was removed in June 2021. In March 2021, the board brought five charges against him for official misconduct pursuant to Education Law § 1709(18). The charges alleged: unauthorized exercise of power by deliberately obstructing the board’s recruitment of a superintendent; disclosure of confidential information from executive session; disclosure of a student’s personally identifiable information; a pattern and practice of attacking board colleagues and disrupting board meetings; and violations of the code of conduct and rules for board members.
A hearing commenced before a hearing officer in April 2021 and concluded in May 2021. Multiple board members testified that the board member’s practice of cursing, verbally abusing and demeaning colleagues and monopolizing board meetings made it “impossible” for the board to carry out its functions. The hearing officer found that the board member’s behaviors “interfered with and compromised the [b]oard’s effectiveness and ability to function.” The board adopted the findings and removed the board member from office.
The former board member challenged the removal and the Commissioner dismissed the appeal. The Commissioner found that the district presented sufficient evidence to support the board member’s removal for official misconduct based on his pattern and practice of attacking board colleagues and disrupting board operations. She stated that the former board member’s conduct is “emblematic of the incivility that has roiled school communities as of late. His colleagues, district staff, and the students and families deserve better.”
The Commissioner stated that “Amidst the struggles and difficulties of the pandemic, we cannot lose sight of the fact that our children are watching and learning from our behavior. For the sake of generations to come, we must all look inward, reflect on our own actions, and ask ourselves whether we are setting the example we want our children to follow.”
Appeal of Corbia, Decision No. 18,092 (February 28, 2022)
In Appeal of Corbia, a board member was elected to the board in June 2020 to serve a three-year term on the Board of Education of the Port Chester-Rye Union Free School District. In September 2020, two posts appeared on Facebook belonging to the board member. The first, which was posted by another individual but “shared” by the board member, referenced “illegal immigrants.” The second, which the board member commented on in approval, made reference to a “white privilege card.” The board member claimed that his Facebook account was hacked, but then he refused to cooperate with the board’s investigation.
The board charged the board member with 5 counts of official misconduct and sought his removal from office. These counts centered on two acts of misconduct: (1) refusing to participate in, and actively thwarting, the board’s investigation; and (2) disclosing confidential information in the form of the unredacted ethics committee report to his attorney. The hearing officer sustained the charges and recommended the board member’s removal. The board adopted the findings and removed the board member from office.
The former board member challenged the removal and the Commissioner dismissed the appeal. She affirmed the board’s determination on the charge that the board member failed to cooperate with, and thwarted the aims of, its investigation. The Commissioner agreed with the hearing officer’s analysis of the board member’s course of action, which was characterized as “willfully, intentionally, and wrongfully imped[ing] an investigation directed and authorized by the Board of Education ….” The Commissioner found that removal for official misconduct was appropriate, as the board member intentionally exercised his powers to the detriment of the school district.
Appeals of Ziegelbauer, Decision No. 18,143 (July 7, 2022)
In Appeal of Ziegelbauer, the Tuxedo Union Free School District removed a board member for official misconduct pursuant to Education Law § 1709(18), in part, for disclosing confidential information. During an executive session, the board member and her colleagues on the board received copies of a confidential report. The superintendent instructed the board members to return the report before the conclusion of executive session. The confidential report pertained to an alleged leak of student information and included information about the board member’s child. The board member, after contacting her attorney, decided to retain the report.
The Commissioner agreed that the board member keeping the confidential report to which she only gained access due to her role as a board member was wrongdoing committed in her capacity as a school officer and is quintessential “official misconduct.” She stated that board members “have a fiduciary obligation to act constructively to achieve the best possible governance of the school district” The board member’s retention of the confidential report based upon her personal interest – which was contrary to the superintendent’s instructions – violated this duty.
The Commissioner rejected the board member’s defense of reliance on advice of counsel, explaining that mindset is only relevant to the removal of school officers under Education Law § 306 because it negates the mindset of willfulness. The Commissioner explained that there is no mindset requirement for official misconduct under Education Law § 1709(18). The Commissioner further noted that official misconduct under Education Law § 1709(18) is not dependent upon a violation of statute or district policy.
Key Takeaways and Practice Pointers
- Review the District’s Code of Conduct and Code of Ethics to verify that they address board member and employee behavior, as determined to be appropriate. Be sure that board members and employees are aware of such requirements.
- Provide ethics and governance training to the board and others, as needed.
- Take appropriate steps to address board member and employee misconduct. Consult counsel as needed when specific issues arise.
Please contact Sara Visingard or the attorney with whom you typically work for related questions or guidance.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.