Matter of Fishman v Board of Educ. of the S. County Cent. School Dist.

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Matter of Fishman v Board of Educ. of the S. County Cent. School Dist. 2012 NY Slip Op 30344(U) February 6, 2012 Sup Ct, Suffolk County Docket Number: 29131/2010 Judge: Paul J. Baisley Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] MEMORANDUM SUPREME COURT, SUFFOLK COUNTY PRESENT: HON. PAUL J. BAISLEY, JR., J.S.c. """, , , )( ',.", In tbe Matter of ROBERTA FISHMAN, MADELINE C. SERPE, PAULINE M. HAZARD and JAMES EDWARD HAZARD, JR., I.A.S. PART 36 By: Baisley, J.S.c. Daled: February 6, 2012 Petitioners, INDE)( NO.: 29131/2010 MOT. NO.: 003 MOT D -againstBOARD OF EDUCATION OF THE SOUTH COUNTY CENTRAL SCHOOL DISTRJCT, JOSEPH L CIPP, JR. and GREGORY C. MIGLINO, JR., PETITIONERS' ATTORNEY: REGINA SELTZER, ESQ. 30 South Brewster Lane Bellport, New York 11713 Respondents, RESPONDENTS' ATTORNEY: GUERCIO & GUERCIO, LLP 77 Conklin Street Farmingdale, New Yark 11735 For Relief Pursuant to Article 78 of the New York Civil Practice Law and Rules . .................•••.••........... " " )( Petitioners Roberta Fishman, Madeline C. Serpe, Pauline M. Hazard and James Edward Hazard, Jr. commenced the instant proceeding for ajudgment pursuant to CPLR Article 78, CPLR §3001, Public Ot1icers Law Article 7, General Municipal Law §51, Civil Service Law §l02 and New York State Constitution Article VlIJ, Section 1, declaring illegal, unconstitutional, null and void, arbitrary and capricious the appointment by the Board of Education (the "Board") of the South Country Central School District (the "District") on May 12, 2010 of Gregory C. Miglino, Jr. to the position of Building Services Administrator and the appointment on June 2, 2010 of Joseph L. Cipp, .If. to the position of Superintcndcnt orthe South Country schools; and directing respondents Miglino and Cipp 10 return and restore to the School District all illegal and w1constitutional payments made to them. Petitioners' claims herein arise out of the following alleged facts: Respondent Gregory C. Miglino,.IT. was a trustee and the president of the South Country School Board on May 12, 2010, when the Board voted (with Miglino abstaining) to appoint Miglino to the newly created part-time position of Building Services Administrator at an annual salary 0[$61,200. The Board had previously voted (on March 24, 201 0) to establish a residence preference for Civil Service positions in the district. Miglino, who placed 15th on the Civil Service list of.certified eligible candidates ror the position of Building Services Administrator in 2009, wa,; not otherwise reachable for the position. but was the only District resident on the Civil Service list. Miglino, whose term as Board truslee expired on June 30, 2010, assumed his new employment position with the District effective July 1,2010. Respondent Joseph 1..Cipp, Jf. served as a trustee on the South Country School Board from 2007 to 2009, when he became an assistant principal in the District. On February 3, 2010, thenSuperintendent of Schools Raymond Walsh resigned, and the Board voted to appoint Cipp Interim [* 2] Rohi!r/u Fisitm(lll i!1ul. I' l1ourr/ o/I:·d'lclI/ioJlI.'1 Emk.\" No. 29 j 3//1nJ () (II. Superintendent of Schools at a salary 01'$1,000 a day. On June 2. 201 0, the Board voted to appoint Cipp Superintendent of Schools at an annual salmy of $240,000. Cipp's term as Superintendent of Schools commenced on July I. 20 I O. Petitioners, who allege that they are residents and taxpayers ofihe District. assert four causes of action in thcIr amended verified petition arising out of the foregoing actions. In the first cause of action they allege that the Board violated the Open Meetings Law (Public Officers Law Article 7) by making the !oregoing determinations in executive scssion without public notice or public discussion. In the second cause of action, petilioners allege that the Board violated the state Constitution by making an unlawful gilt of public funds to Miglino and Cipp, and seek to void the allegedly unauthorized or ultra vires acts or the Board and compel the restoration of the funds to the District. In the third cause of action, petitioners seek adcclaration declaring null and void the resolutions appOillting Miglino and Cipp lo their respective positions, on the ground that respondents have unlawfully wasted District money and illegally used public funds for improper purposes. Petitioners further allege that the appointment or Miglino violated Education Law ~3016, which assertedly requires a super-majority vote, and that the appointment by a board or one of its members to an employment position is improper. In the fourth cause of action, petitioners allege that the Board acted unlawfully and unconstitutionally when it conspired with Miglino in acts of self-dealing that constituted a breach of fiducialY responsibility and a violation of the Civil Service Law and the Constitution. Petitioners further allege that Miglino docs not meet the mmimum qualifications for the position of nuilding Services Administrator because he docs nol possess the required degree and does not have the required experience, and that as president of the Board Miglino colluded with the Board to establish a residence preference for the position as a way to bypass the Civil Service list. Finally, petitioners allege that the residency requirement failed to comply '\vith Civil Service Law §20, which they assert requires a public hearing. Petitioners allege that all orthe foregoing violates public policy and accordingly the Board's actions should be cancelled and set aside. Respondents served an amended verified answer to the amended petition, in which they urge the denial ortlle petition on various grounds. They allege, infer alia, that petitioners were required to IiIe a notice or claim prior to commencing the instant proceeding; that petitioners' claims are outside the primary jurisdiction or the court and should be determined by the Commissioner or Education; that petitioners lack standing; and that petitioners' eonslitutional claims fail to slate a cause of action. Respondents contend th<llrespondents' actions in <lppointing respondents Cipp and Miglino v.'ere in all respects appropriate and their acceptance of their respective appomtments was likewise proper. Respondents' amended veri!·ied answer is supported by numerous exhibits apparently intended to comprise the record oCthe proceedings (but n01 certified as required by CPLR PS04( e)), together with the aftidavits of Richard A. Kollar. Nelson Briggs and Nancy Poulos, the District's Interim Assistant Superintendent oflluman Resources. Assistant Superintendent ofl-Iuman Resources. and District Clerk, respectively. The Court linds. in the lirst instance, that respondents' assertion that petitioners' claims fall outside the primary jurisdiction of the Court is without merit. Petitioners' claim that respondents violated the Open Meetings Law is not within the scope orthe authority granted \0 the Commissioner of Education by Education Law §31 0 (Dombroske v Board ol Education, 118 Mise 2d 800 (Sup Ct 1983 I). and petitioners' further claims of, inter alia, waste of public funds, self-dealing and constitutional violations do nOl require the Commissioner's specialized knowledge and expertise. -2- [* 3] /{ol!<,l·wFishman el ai, v Board ojTdIiC{lfiolll!/ indn No. 2913f/20fO tlf. Respondents' affirmative defense that petitioners lack standing is also without merit. Petitioners' allegations that they are residents and taxpayers orthe District are suflicient to establish their standing with respect to their claims that respondents wasted public funds (General Municipal Law §51; Civil Service § I 02; RWJlpello v East frondequoil Cent. Sch. Disl., 236 AD2d 797 [4th DepI 1997]). Petitioners' further allegations that respondents violated the Open Meetings Lawestablish their standing as aggrieved persons under Public Officers' Law § I 07. Moreover, contrary to respondents' argwnents, this is not a proceeding that requires petitioners to have served a notice of claim as a prerequisite to commencing the proceeding. Manifestly the petition seeks vindication of a public interest rather than enforcement of private nghts; accordingly a notice of claim is not required (Cayuga-Onondaga Counties Bd a/Coop, Educ. Servs. v Sweeney, 89 NY2d 395 [1996]; Ddridge v Carmel Cent. School Dis1. Bd. O/EelIIC., 82 AD3d 1147 [2d Dcpt 2011 l). Respondents' remaining: allirmative defenses are factually unsupported and are ~imilarly without merit. Accordingly, the Court proceeds to determine the merits ofthc petition. Upon a review of the record and the parties' various submissions, the Co un is constrained to agree with petitioners that the Board's actions with respect to Miglino were improper in various respects. In the first instance, the Board's action in appointing one of its own members to an employment position was on its face improper (Wood v Town of Whitehall, 120 Misc. 124, ajf'eI, 2061\D 786 [3d Dept 1923]). Miglino's position as president ofthe Board and his close association with the other Board members may be presumed to have unduly influenced the other Board members in his favor. The impropriety of the Board's action was not cured by the fact that Miglino himself did not vote, or by the fact that his appointment did not become cfJcctive until the day after his term as an active Board member expired (Wood, supra). Indeed, the issue apparently prompted one Board member to propose an ethics resolution "so that hoard members do not in any way, within one year of service, profit from being on the board·' (April 21, 20 I a minutes, item Y). The minutes reflect that "Trustee Mig1ino objected strongly to the word 'profit', stating that people are entitled to eam a living and not be discriminated against if they're qualified for ajob. He stated that [Human Resources] has been clear that the particular individual has gone through all the appropriate background checks, filled out the appropriate paperwork, fingerprints and otherwise, so in his estimation that is nothing more than discrimination, not prolitecring." Although the "particular individual" was not identified in the public portion of the meeting, it is clear in retrospect from the context that Miglino's statement was both selr-serving and self-referential. Moreover, the machinations that led up to the Board's appointment of Miglino 10 the position occurred out orthe public vie,"\'~ either In executive session or without public disclosure that Miglino was the intended beneficiary of the Board's various actions. There was. for example, no public discussion orthe Board' s March 24. 2010 resolution to create a District residency requirement for Civil Service positions, a resolution that was co-introduced by Miglino, who, as the sole District resident on [he Civil Service eligibility list for the Building Services Administrator position. had a vested but undisclosed interest in its passage. lndeed, Miglino, who was ranked 15th on the list because of his comparatively low score on the exam, could not even have been considered for the position without the residency requin:ment Miglino himself engineered. There was no public discussion of the tact that the District had petitioned the Civil Service Commission to change the title of the existing vacant position of "Plant Facilities J\dmll1istrator'" to ·'Building Services Administrator'" -a title change that redounded exclusively to the benefit ofMiglino. -3- [* 4] f?oherla Fishmall <.'1 (II. v lJourd a/EducatiO/l!!! al. Illdex No. 2'J13l/20/0 The Board's adoption on April 21, 2010 ora resolution approving the use orthe Building Services Administrator title and releasing the position for posting, although nominally ·'public,'· manifestly did not give nOlice to District residents ofMiglino's interest in the position, his position on the Civil Service eligibles list, and the personal advantage he had gained as a result orlhe residency preference approved by the Board of which he was the presiding member. The record reflects thai in fact the first public discussion ol'Miglino's interest in the position was on May 5, 2010 -just one week before the Board voted, sub rosa, to award Miglino the position. The record thus confirms petitioners' allegation that - contrary to respondents' assertions - there was virtually no public notice or public discussion oCthe Hoard's plan to create a new administrative position and to appoint one of its own members to that position. Although there was no public discussion oC the Building Services Administrator position prior to the Board· s appointment of Miglino on May 12, 2010, the record reflects that there was extensive public discussion thereafter. The minutes of the May 26, 20 I 0 business meeting orthe Board reflect that statements in opposition to the l3oard's action were read into the record by several District residents (including petitioners' attorney in this proceeding). The minutes reflect that questions were raised rcgmding the neeessily of the Building Services Administrator position, the legality of the residency preference, as well as financial and ethical considerations, and that the school attorney attempted 10 addrcss those issues. Opposition to the position by other District residents was also expressed at the June 2, 20 I0 meeting, thc June 16, 20 I0 mecting. and the July 7, 20 I0 meeting. The minutes of the July 21, 20] 0 business meeting reflect that ultimately the Board voted to hold an "informational mecting" regarding the Building Scrvices Administrator position on July 28, 2010. All of the foregoing demonstrates that the appointment ofMiglino to the Building Services Administrator position was a matter of significant public interest and that the public was wrongfully excluded from the Board's deliberations regarding it. While respondents correctly assert that personnel matters are properly the su~ject of executive sessions (Public OfTicers Law § I 05(1 )(f), only matters that relate to the appointment oC a particular individual may be conducted in executive session, so all of the Board's deliberations leading up to Miglino's appointment were required to be open and public. It appears that instead, the Board impermissibly voted while in executive session to create the new position and to take the necessary steps to ensure that the position was awarded to one of its own members. This clearly violated both the letter and the spirit oCthe Open Meetings Law (Public Officers Law Article 7; lvfaUe,. qt"Gordon v ViflaRe (?l klonlicello, 207 AD2d 55 [3d Dept 1994]). Moreover, as one ofthe purposes of the Open Meetings Law is to pemlit administrative action to be infonned by the opinions and responses of the public. the violation cannot be cured Hunt: pro lIme. In light orall oCthe foregoing. the Court detennines and declares that the Board action in creating the position of Building Services Administrator and appointing its member and president Gregory 1. Miglll1o. Jr. to the position was arbitrary and capricious and violative of the Open Meetings Law and accordingly is null and void. Petitioners' submissions do not establish, however, that the Distnet did not receIve any benefit 11'0111 services performed by Miglino in his role as Building Services the Administrator 11·OIn dale of his appointment to the daw o1'thi5ordcr. Accordingly, the Court declilles the to order that the moneys paid to him as salary be returned to the District. All of petitioners' other claims with respect to the Miglino appointment are without merit or are immaterial in light orthe determination herein. -4- [* 5] /?"hcrlu l;i,I/tIl1(1II ~I III. \' NOllnl "jFdllcalioll al. rl/dex No, }Y/3//JIi/O 1'1 With respect to the Board '5 appomtment of Joseph L. Cipp, Jr. to the position of Superintendent of Schools, the Court finds that petitioners' submissions are insufficient to establish that the appointment was unlawful or improper, or that it violates the Open Meetings La"'" or any other provisions of Jaw cited by petitioners. Cipp, although a f~mner member of the Board, had not been a member of the Board for nearly a year at the time ofhlS interim appollltment on February 3, 2010, which apparently was not challenged by petitioners. Petitioners have proffered no evidence that Cipp's status as a former Board member unduly inHuenccd the Board to otTer him the position of Superintendent. Moreover, the Board did not act improperly in deliberating on Cipp's appointment in executive session. Open Meetings Law ~105(1 )(1) specifically authorizes the Board to meet in executive session with regard to personnel matters ("matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation"). Respondents allege, without evidence to the contrary by petitioners, that the resignahon of thenSupenntendent of Schools Raymond \\/a1sh on February 3, 2010 was sudden and unanticIpated. The minutes orthe February 3, 2010 Board meeting reflect the acceptance of Walsh's resignation and the interim appomtment ofCipp, as \-vellas the intention of the Board president to develop a committee for the purpose of finding a new Superintendent of Schools. Respondents' submissions establish that, contrary to petitioners' allegations, the Superintendent position was publicly posted and advertised, and that there were other applicants whose qualifications were reviewed along with those of Cipp. The Board's conclusion that Cipp was the preferred candidate and its determination to olfer him the position is within its prerogative (Education Law § 1711), and the Court will not substitute its judgment for that of the Board. Petitioners have offered no evidence to substantiate their claims that the salary paid to Cipp is excessive or unreasonable, and there is no allegation or showing that Cipp is not otherwise qualified to perform the duties of the position. Moreover, there is no evidence that the District did not benefit from the services performed by Cipp during the term of his appointment Accordmgly, all of petitioners' claims with respect to Cipp are denied. Set1lcjudgment. li1J,'iJ~ J M-".... &,. 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