State Education Commissioner John King has rejected both of Buffalo School Board member Carl Paladino’s petitions to have President Barbara Nevergold removed from office.
However, King left unanswered the question of whether Nevergold may have inadvertently violated state law by failing to run for election last year.
As a result, Paladino said he intends to pursue his case by taking legal action against Nevergold in State Supreme Court.
In the fall, Paladino sent King a petition seeking Nevergold’s removal for a variety of alleged misdeeds since she became board president in July. They ranged from alleged violations of board policy, poor conduct, mismanagement and violations of the Open Meetings Law.
King denied that petition March 12 for a variety of technical reasons.
“The application must be denied on procedural grounds,” he stated.
On the same date, King also denied Paladino’s second petition, which was much more worrisome to Nevergold and Karl Kristoff, the district’s outside legal counsel.
In that petition, filed in November, Paladino claimed that Nevergold was holding her seat illegally because she did not run for election last year as required by state education law.
Nevergold began serving on the board in January 2012, after the board appointed her to fill the remainder of Chris Jacobs’ term following his election as Erie County clerk.
Since Jacobs’ at-large seat was not up for re-election until May of this year, Nevergold said she was informed that she would not be required to run for election until then. She is currently one of 13 candidates running for one of the three at-large seats.
But Paladino contended that the board’s own written policy would have required Nevergold, as an appointee, to run for election at the very next opportunity. That would have been in May of last year, when district seats – but not at-large seats – were on the ballot.
Various education lawyers who looked at Paladino’s second petition stated that he may have a valid point.
It’s possible, the lawyers said, that the district may have been misinterpreting its own vaguely worded policy for years.
But when King ruled on Paladino’s second petition, he said Nevergold could not be removed from office under Section 306 of state education law because that law required Paladino to demonstrate that Nevergold willfully neglected or violated her duties as a board member.
That could not be proved. Nevergold has consistently stated that she was simply following the advice provided to her by the district regarding when she must run for office.
“The record contains no evidence that respondent Nevergold engaged in any willful violation or neglect of duty as required for removal by Education Law Section 306,” King’s ruling stated.
The decision sidestepped any clarification of state law requirements regarding when an appointed board member must run for office.
Had Paladino filed his petition under a different section of the law, King said in his decision, he may have had more freedom to tackle the substance of Paladino’s claim.
But since Education Law Section 306 deals primarily with issues of board member misconduct, he stated, the response to Paladino’s petition was “not the appropriate forum” to address the board policy issue.
District lawyer Kristoff said that still leaves the district in a tenuous place regarding its election policy.
“Do I wish he might have clarified the matter with regard to the policy and the law?” Kristoff said. “Certainly.”
He described the district’s policy as “inartfully done” and further stated that he believes the School Board will take steps to clarify its policy to make sure it is consistent with what state law requires.
Paladino, however, said he will not wait for board clarification or file a new appeal with the state Education Department.
Instead, he said, he plans to take legal action in State Supreme Court to get a judge’s ruling on Nevergold’s legal status as a board member.
He said he’s determined to not only remove her from office, but to have every vote she’s cast since July invalidated.
“I want to negate her, period,” he said.
He also expressed his disappointment with the state Education Department.
“Working through those people is just impossible,” he said. “They just don’t get it. They claim to have broad discretion and broad jurisdiction, but they never exercise it.”
To view Commissioner King’s decision, visit the School Zone blog at www.buffalonews.com/schoolzone