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School board's attempt to remove one of its members for neglect of duty rejected by Commissioner of Education

School board's attempt to remove one of its members for neglect of duty rejected by Commissioner of Education
Application of the Board of Education of the City School District of the City of Elmira for the removal of Dianna Brewer-Jackson as a member of the board. Commissioner's Decision No. 16,051

The Board of Education of the City School District of the City of Elmira asked the Commissioner of Education to remove Board Member Dianna Brewer-Jackson from her position. The Board alleged that Brewer-Jackson had ?engaged in a willful violation of the law and neglect of duty by failing to cooperate with an investigation and failing to disclose evidence in her possession regarding a potential risk to the children of the district.?

The Commissioner denied the Board?s application.

The Commissioner said that a member of the board may be removed from his or her office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that a board member or the board president has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education.

In this regard, said the Commissioner, the party seeking to have the individual removed has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which relief is sought.

In this instance the Commissioner said that he ?must dismiss? the Board?s claim that Brewer-Jackson willfully failed to cooperate with an investigation in this matter. Further, said the Commissioner, ?the record reveals that the board members, the board president, the superintendent and the police department were aware of the alleged perpetrator?s name and the alleged school building and there is nothing in the record to suggest that Brewer-Jackson withheld any additional information.?

The Board also alleged that Brewer-Jackson ?willfully failed to report the allegation" of child abuse. Article 23-B of the Education Law requires certain school employees to report allegations of child abuse in an educational setting (Education Law §§1125-1133).?*

Commissioner Steiner ruled that the Board ?failed to meet its burden to show that Brewer-Jackson willfully failed to report an allegation in violation of Article 23-B in that it did not offer any evidence that Brewer-Jackson had received required training regarding the reporting requirements of Article 23-B.**

Turning to an element flowing from this application by the School Board -- reimbursing Brewer-Jackson for her legal expenses in defending herself in this matter, the Commissioner commented that Education Law §3811(1) does not provide for reimbursement of legal expenses incurred to defend ?a criminal prosecution or an action or proceeding brought against ... [a board member] by a school district ... including proceedings before the Commissioner of Education ....?

Accordingly, Commissioner Steiner ruled that Brewer-Jackson was not entitled to a "certificate of good faith" because the application for her removal was brought by the school district in which she served as an officer.

* ?Child abuse? for such purposes is defined in Education Law §1125. Education Law §1126 provides, in pertinent part, as follows: Where an oral or written allegation is made to a ... school board member ... that a child has been subjected to child abuse by an employee or volunteer in educational setting, such person shall upon receipt of such allegation: (a) promptly complete a written report of such allegation including the full name of the child alleged to be abused; the name of the child?s parent; identity of the person making the allegation and their relationship to the alleged child victim; the name of the employee or volunteer against whom the allegation was made; and a listing of the specific allegations of child abuse in an educational setting.

** §100.2(hh)(2) of the Commissioner?s regulations provides that each school district is required to establish and to implement on an ongoing basis a training program regarding the procedures set forth in Article 23-B for teachers, administrators, various staff and school board members. The Commissioner urged the Board ?to ensure that training of board members regarding Article 23-B is implemented on an ongoing basis.?

The Commissioner?s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume49/d16051.htm

Full post as published by New York Public Personnel Law on May 21, 2010 (boomark / email).