Matter of Zehner v Board of Educ. of the Jordan- Elbridge Cent. School Dist.

[*1] Matter of Zehner v Board of Educ. of the Jordan- Elbridge Cent. School Dist. 2010 NY Slip Op 51709(U) [29 Misc 3d 1206(A)] Decided on October 1, 2010 Supreme Court, Onondaga County Greenwood, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 1, 2010
Supreme Court, Onondaga County

In the Matter of David Zehner, Petitioner,

against

The Board of Education of the Jordan-Elbridge Central School District and SUE GORTON in her capacity as Assistant Superintendent of Instruction and as the purported Interim Superintendent, Respondents,



2010-4926



STEPHEN CIOTOLI, ESQ., OF O'HARA, O'CONNELL & CIOTOLI

For Petitioner

FRANK W. MILLER, ESQ., OF THE LAW FIRM OF FRANK W. MILLER

For Respondents

Donald A. Greenwood, J.

This petition is brought pursuant to CPLR Article 78 and alleges that the respondent, Board of Education of the Jordan-Elbridge Central School District (hereinafter "the Board"), violated the Open Meetings Law on July 21, 2010 when it appointed respondent Sue Gorton as Interim Superintendent in Executive Session. According to the petition, the agenda published for that meeting did not make any reference to the topic of a Superintendent search or the appointment of an Interim Superintendent of schools. On July 30, 2010, the Board issued a public information bulletin to the school community, stating that "[t]he Board has decided to appoint as Interim Superintendent, Ms. Sue Gorton effective November 1, 2010. In order to ensure a seamless transition, Ms. Gorton will begin working this summer on District-wide [*2]matters with Mrs. Dominick." Marilyn Dominick is the current Superintendent, who is scheduled to retire on November 1, 2010. Thereafter on August 3, 2010, petitioner's counsel notified the Board by letter that the appointment of Gorton was in violation of the Open Meetings Law and that it was not properly noticed on the meeting agenda or discussed in open session. No response was received and the Board's minutes from August 4, 2010 and August 18, 2010 show that no discussion was held at either meeting with respect to this issue.

The petitioner seeks an order of this Court declaring that the Board's actions to appoint Gorton as Interim Superintendent while in Executive Session violated the Open Meetings Law and is therefore null and void; that there is no statutorybasis for the Board's action purporting to appoint an employee to the position of Interim Superintendent without a public vote or discussion and that the action is therefore null and void as being ultra vires, arbitrary, capricious and an abuse of discretion; and that the Board is to refrain from any further violations of the conditions and requirements of the Open Meetings Law and Public Officers Law. In addition, the petitioner seeks costs and reasonable attorney's fees.

I.Standing

The Board argues that the petitioner lacks standing to bring this action inasmuch as he does not fall within the zone of interest protected by the statute. See, Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761 (1991). The standing of a party to seek judicial review of aclaim or controversy is a threshold matter which must be resolved by this Court before the merits of the application may be considered. See, id.The Court of Appeals has noted that the Public Officers Law states in part that "[e]very meeting of a public body shall be open to the general public." Gordon v. Village of Monticello, Inc., 87 NY2d 124 (1995), quoting, Public Officers Law §103. It further emphasized the Legislative preamble to the statute which states "[i]t is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials." Id. This must be differentiated from cases involving environmental harm, where the Court of Appeals has acknowledged the imposition of standing barriers because such litigation "can generate interminable delay and interference with crucial government projects." Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 NY3d 297 (2009), quoting, Society of Plastics, supra. In the present case, the petitioner, a member of the general public, a district taxpayer, and employee of the school district, clearly has established that he is in the zone of interest that the Open Meetings Law is designed to protect. Moreover, and most importantly, he was in attendance at the meeting in question when the Executive Session was called and the public was excluded and he is a member of the citizenry aggrieved by the alleged violation. See, Sanna v. Lindenhurst Board of Education, 85 AD2d 157 (2d Dept. 1982). As a lawful attendee of the meeting in question, the petitioner is an aggrieved party and has standing to challenge the school Board's activities. See, id.[FN1] Inasmuch as the petitioner has standing to challenge the Board's actions, the merits of the petition may be considered. [*3]

II.The Motion to Adjourn to Executive Session

The Open Meetings Law "was intended - as its very name suggests - to open the decision making process of elected officials to the public while at the same time protecting the ability of the government to carry out its responsibilities." Gordon v. Village of Monticello, Inc., 87 NY2d 124 (1995); see also, Public Officers Law §100 et seq. The Legislature stated in its preamble to the statute that "[i]t is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of the state be fully aware of and able to observe the performance of public officials." Id, quoting, Public Officers Law §100. The provisions of the law are to be liberally construed in accordance with the statute's purposes. See, Matter of Orange County Publications v. Council of City of Newburgh, 45 NY2d 947 (1978).

Pursuant to the Education Law, meetings of the board of education must be open to the public, but boards may hold Executive Sessions at which sessions only the members of such boards or the persons invited shall be present, See, Education Law §1708(3). The procedure and substance of those sessions is subject to the limitations of the Open Meetings Law. See, Previdi v. Hirsh, 138 Misc 2d 436 (1998), citing, Public Officers Law §§100 to 111. In fact, pursuant to the Open Meetings Law, a public body may conduct an Executive Session only for certain limited purposes and the enumerated instances for convening an Executive Session represent exceptions to the general rule of openness; these topics are circumscribed by statute and must therefore be narrowly scrutinized. See, Public Officers Law §105(1); see also, Daily Gazette Co., Inc. v. Town Board, Town of Cobbleskill, 111 Misc 2d 303 (1981). Eight purposes are enumerated in the statute. See, id. As this Court has previously noted, the thrust of the Open Meetings Law is "theperformance of public business in an open and public manner with the public able to attend and listen to the deliberations and decisions that go into the making of public policy." See, Brander v. Town of Warren Board, 18 Misc 3d 477 (2007), quoting, Matter of Sciolino v. Ryan, 81 AD2d 475 (4th Dept. 1981). This Court therefore is required to "scrutinize the propriety of executive sessionslest, the...mandate be thwarted by thinly veiled references to the areas delineated thereunder." Id, citing, Gernatt Asphalt Products, Inc. v. Town of Sardinia, 208 AD2d 139 (4th Dept. 1995).

The Board violated the Open Meetings Law in several ways. First, the Board failed to give a sufficient reason for adjourning to Executive Session. The minutes from the July 21, 2010 Board meeting indicate that the Board adjourned to Executive Session for four of the eight enumerated purposes, as copied verbatim from the statute. See, Public Officers Law §105. No further information was provided. However, this is insufficient. While any motion to go into Executive Session must identify the general area to be considered, it is insufficient to "merely regurgitate the statutory language...this boiler plate recitation does not comply with the intent of the statute." Daily Gazette, supra. Instead, to validly convene an Executive Session for discussion, the public entity must identify with particularity the topic to be discussed, since only through such identification will the purposes of the Open Meetings Law be realized. See, id.Therefore, the Board was required to be more specific in its resolution and its failure to do so constituted a violation of the Open Meetings Law.

III.Discussion in Executive Session

The Board also violated the law by discussing the issue of the Superintendent search in Executive Session. Board President Mary Alley, in her affidavit, acknowledges "discussing and addressing the issue of a search for a new Superintendent." Alley affidavit, Paragraph 6. There is no exception for this type of discussion in the Open Meetings Law to take place in Executive Session. This is precisely the type of issue that is required to be discussed in an open meeting. It is a policy discussion by the Board, which is not a legal matter for Executive Session. The qualities and qualifications that the Board is seeking in a Superintendent, as well as the process which it intends to utilize, are matters for public observation in a public meeting. The ability to adjourn to Executive Session is a statutory exemption limited, on the facts of this case, to discussing the prospective appointment of a particular individual. It is a separate step that the Board may consider if it truly needs to address confidential matters about that individual and is not to be used as an all-encompassing exemption. The appointment process must not occur behind closed doors. Therefore, by discussing the search for a new Superintendent in Executive Session the Board violated the Open Meetings Law.

IV.Appointment of Respondent Gorton

This Court must next determine whether the Board violated the Open Meetings Law by appointing respondent Gorton as Interim Superintendent. The Board has submitted affidavits from Superintendent Dominick; School Board President Alley; and Gorton herself, all denying that a formal appointment was made. Respondents argue that the petition is therefore, premature. This Court disagrees. The act of discussing and coming to a consensus in Executive Session, but not passing a formal resolution, does not shield the Board from a violation of the law. The Open Meetings Law was designed to assure the public's right to be informed and it is the entire decision making process which the Legislature intended to affect by the statute, not only formal acts of voting or formal executions of documents. See, Orange County Publications, supra. The aforementioned affidavits were prepared only for this litigation and attempt to recast the facts. The Board, through the Superintendent, the duly appointed agent pursuant to its own rules,[FN2] issued a public information bulletin on its official website advising the public that it had appointed Gorton as Interim Superintendent. The Board now argues that this was merely a mistake that the publicity "got ahead of" the formal action. However, it was only during the course of this litigation that the Board has recanted the statement and it has taken no action directly or through its Superintendent to correct the purported appointment.[FN3] The process has now been tainted and suggests to the public that there will be no deliberation or discussion because the outcome has already been determined, with the public vote being a mere formality.[FN4][*4]Inasmuch as the Board members participated in a private meeting with a quorum of Board members present, where topics for discussion and eventual decision are such as would otherwise arise at a regular meeting occurred, the Board has violated the Open Meetings Law. See, id.

V.Remedies

Pursuant to the Public Officers Law, the petitioner may seek a declaratory judgment and injunctive relief with respect to the alleged violations. See, Public Officers Law §107. This Court is empowered, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of the Open Meetings Law to be void in whole or in part. See, id. Given the unique circumstances of this case and the good cause shown, this Court, in its discretion hereby declares void any act of the Board which purported to name respondent Gorton as Interim Superintendent.

With respect to the petitioner's request for attorney's fees, not every violation of the Open Meetings Law automatically triggers its enforcement sanctions; an award of attorney's fees should not be granted by courts to the prevailing party simply as a matter of course. See, id. This Court agrees with the petitioner that he should have not have been required to go to court to enforce the law and that he is now further aggrieved by incurring attorney's fees. While the Board has violated the Open Meetings Law in this case, the appellate courts have set a high bar for the recovery of attorney's fees and the petitioner has failed to establish in the record before this Court "a persistent pattern of deliberate violations" of the Open Meetings Law. Reese v. Daines, 62 AD3d 1254 (4th Dept. 2009), quoting, Matter of Goestschius v. Board of Educ. Of Greenburgh Eleven Union Free District, 244 AD2d 552 (2d Dept. 1997). Nor does the record establish "obvious prejudice" to the petitioner as a result of the Board's "intentional and deceitful conduct." See, Gordon, supra.

NOW, therefore, for the foregoing reasons, it is

ORDERED AND DECLARED, that upon good cause shown, that any purported action by the Board that appointed respondent Sue Gorton as Interim Superintendent violated the Open Meetings Law and is therefore void, and it is further

ORDERED, that the petitioner's request for costs and reasonable attorney's fees pursuant to Public Officers Law §107(2) is denied.

ENTER

Dated: October 1, 2010 Syracuse, New YorkDONALD A. GREENWOOD

Supreme Court Justice Footnotes

Footnote 1: Moreover, where a court's decision to deny standing would effectively insulate the government's action from judicial review, a court has discretion to find that standing exists. See, Rudder v. Pataki, 93 NY2d 273 (1999), citing, Boryszewski v. Brydges, 37 NY2d 361 (1975).

Footnote 2: See, Jordan-Elbridge Central School District Board Policy §4320 "Superintendent-Board of Education Relations"

Footnote 3: The Board met on two subsequent occasions and the option of a special meeting was also available to it.

Footnote 4: As of the date of this Decision, the Board has posted on its website that "[t]he Board of Education will be appointing Susan Gorton...as Interim Superintendent while we conduct our search."