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
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MEMORANDUM
SUPREME COURT, SUFFOLK COUNTY
PRESENT:
HON. PAUL J. BAISLEY, JR., J.S.c.
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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 .
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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
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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.
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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 l..aw § 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.
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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.
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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.
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