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
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SUPREME COURT, SUFFOLK COUNTY
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
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.
REGINA SELTZER, ESQ.
30 South Brewster Lane
Bellport, New York 11713
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
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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
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