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A school board may permit public input at a board meeting but there is no statutory mandate requiring that it do so

A school board may permit public input at a board meeting but there is no statutory mandate requiring that it do so
Appeal of Robert Kushner from action of the Board of Education of the East Williston Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,020

Robert Kushner, a resident and taxpayer in the Ease Williston Union Free School District filed an appeal with the Commissioner seeking the removal of Ellen Ritz, Joann Kaplan, Robert Freier and Mark Kamberg from their positions on the board for alleged school district ?violation of district policies.? The policy in question: public participation at a board meeting.

The genesis of the appeal: In the course of considering an amendment to board policy that would enlarge the amount of open time for public participation and restrict public participation during agenda items at the discretion of the board at board meetings, the board president contended that she moved the question to a vote after ascertaining that no member of the public present at the meeting indicated a desire to comment. Kushner, on the other hand, claimed that he waited to speak until after the board discussion ?as a courtesy to the board? and that the board?s voting on the change notwithstanding the fact that he had indicated that he wished to comment on the proposal after the president had called for the vote, violated the policy of the board then in place.

As redress, Kushner asked the Commissioner to:

1. Rescind the revised policy and all board actions subsequently approved under that policy;

2. Consider adopting a regulation requiring all school boards to allow the public to speak to agenda items at the time when they arise; and

3. Remove ?the respondent board members? from the board because they ?knowingly and willfully violated board policies.?

As to the action of the board in adopting the new policy, the Commissioner said that a school board has the right to control its agenda at board meetings and there is no statutory mandate requiring a school board to permit public input at its meetings. Where such public input is permitted, as was here the case, the only issue, insofar as Kushner?s appeal was concerned, was whether the board followed the policy that were in effect when they revised policy.

Noting that Kushner had the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he sought relief, the Commissioner ruled that ?Given the conflicting evidence presented in this appeal, I find that [Kushner] has failed to meet his burden? and that the Board did not violate the policy then in force in adopting a revised policy.

The Commissioner also rejected Kushner?s suggestion that he ?consider implementing a regulation that would require all school boards to allow the public to speak to agenda items at the time when they arise.? Such matters, said the Commissioner, are properly for local boards of education to decide, citing Education Law §1709.*

Finding that there was no basis to support removing the board members, the Commissioner dismissed Kushner?s appeal.

In addition, the Commissioner granted the individual board members request for certificates of good faith pursuant to Education Law §3811(1) thereby permitting them to be reimbursed by the school district for ?heir costs and reasonable expenses? incurred in defending themselves in this appeal. The Commissioner said that ?It is appropriate to issue such certification unless it is established on the record that the requesting. respondents acted in bad faith? and there was no such evidence of bad faith in this record.

* The Commissioner also indicated that Kushner lacked standing to seek such relief as ?mere status as a resident and taxpayer in a school district is not sufficient to confer standing to challenge school district policies? absent a showing that he is personally aggrieved by the revised board policy.

Full post as published by New York Public Personnel Law on February 17, 2010 (boomark / email).