Late into the night of November 3rd, six members of the New Rochelle Board of Education — Chrisanne Petrone, Jeffrey Hastie, David Lacher, Valerie Orellana, Deidre Polow, and Rachel Relkin — left a crowded room of angry parents at the Trinity Elementary School Auditorium went to the school’s library, held what appears to have been an illegal meeting where they passed what appears to had been an illegal resolution in the hopes of restoring calm at the school. Board member Naomi Brickell had been present for the first hour of the PTA meeting but left due to a prior commitment.
That night well over 100 people, perhaps as many as 150, turned out for a Trinity PTA Meeting which was centered on two related topics: why a background check and certification was not done prior to hiring former Assistant Principal Nadine Pacheco and why Nicole Mussolini, a new teacher, was being removed from her classroom to make way for Pacheco.
Resolution 12-153-4, passed in secret, two and half hours after the PTA Meeting began and long after parents had left the building, appointed Nicole Mussolini as Interim Teacher.
Whatever the intention — and promoting Mussolini and restoring her to her classroom was the right thing to do — the way the board went about it should be disturbing to anyone interested in the democratic process and the rule of law.
To set the context, the Trinity community was up in arms. Speaker after speaker pilloried Schools Superintendent Richard Organisciak for what many described as a disdainful and arrogant attitude towards the concerns of parents in Ms. Mussolini’s class who feared disrupting the student’s school year to replace a well-liked teacher with Mrs. Pacheco who many parents said was feared by their children. Other speakers raised questions as to how Pacheco was hired without the required administrative license.
According to Resolution 12-183, which will be voted on tomorrow night, the meeting is now being described as an “Emergency Meeting” which passed Resolution 12-153-4 promoting Miss Mussolini at 9:28 PM.
New Rochelle board members might be interested to read a publication of the New York State School Boards Association entitled School District Obligations Under The Open Meetings Law Fact And Fiction (2009) by Kimberly Fanniff, NYSSBA Associate Counsel and Aileen Abrams, NYSSBA Assistant Counsel. They ought to find the section on Emergency Meetings especially enlightening including the part about held to conduct business that cannot wait until the next regularly scheduled meeting and the part about at least 24 hour advance notice is given to the other board members.
3. Special or emergency meetings.
a. These meetings are not regularly scheduled. They usually are held to conduct business that cannot wait until the next regularly scheduled meeting.
b. They may be called by any school board member (see Matter of Felicio, 19 Ed. Dep‟t Rep. 414 (1980), as long as at least 24 hour advance notice is given to the other board members (Educ. Law § 1606 (3); see also Application of Bean, 42 Ed. Dep‟t Rep. 171 (2002)).
c. Although it normally does, there is no requirement that the notice of a special meeting state a proposed agenda (Matter of Neversink, 10 Ed. Dep‟t Rep. 203 (1971)).
d. Care must be taken that special board meetings do not usurp the place of regularly scheduled board meetings for the consideration of regular district business, in order to avoid a possible violation of the Open Meetings Law.
e. The notice provisions of the Open Meetings Law must be complied with when calling a special meeting.
So an “Emergency Meeting” is a public meeting for which prior notice requirements are not met. There must be some urgent business that cannot wait until the next regularly scheduled board meeting. This says nothing about an “Executive Session Emergency Meeting” which is what the Board held and why the actions of the board that night were illegal and the resolution they passed invalid.
According to the NYSSBA, a majority of the board cannot dispense with notice of a board meeting to other members. Furthermore, a good faith effort must be made to give actual notice of the meeting to each board member. Failure to do so may invalidate any action taken at the meeting (see Matter of Colasuonno, 22 Ed. Dep‟t Rep. 215 (1982)). However, Individual board members may waive the 24 hour notice requirement in case of an emergency (Id.; Matter of Carlson, 11 Ed. Dep‟t Rep. 284 (1972)). Action taken at a board meeting for which a board member did not receive the required notice may be sustained if the board member signs an affidavit waiving the notice requirement (Matter of Board of Educ. of UFSD No. 1 of the Town of Hume, 29 St. Dep‟t Rep. 624 (1923)).
Again, one problem is that the November 3rd meeting was not held to conduct business that could not wait until the next regularly scheduled meeting.
During the PTA Meeting, Schools Superintendent Richard Organisciak has explained that Mussolini was working within a 100 day time frame during which was a “per diem” teacher being paid $100 a day. The resolution passed that night retroactively promoted her to Interim Teacher at a salary of $60,366, going back to September 14, 2011. Waiting to pass the resolution promoting Mussolini at the December 6th Meeting (or even holding a Special Meeting on November 29th) would have accomplished the same thing. The resolution had no bearing on restoring Mussolini to her classroom. In fact, the resolution does not even mention that subject — the topic of so much parent ire during the PTA meeting. The administration could have (and did) simply direct that Mussolini return to her classroom the next day.
The other problem is that Executive Sessions can only originate from an Open Meeting and then only to discuss certain topics. Since the Board did not notice a public meeting or even hold a public meeting, the Board could not move to go into Executive Session. The public may be excluded only from properly convened executive sessions (Pub. Off. Law § 105 (2); see also Educ. Law § 1708 (3)), and other meetings expressly exempted under the law (Pub. Off. Law §§ 105(2), 108). Since the executive session was not properly convened the public could not be excluded from the meeting, which they were.
Pursuant to the Open Meetings Law, school boards must give public notice of their meetings (Pub. Off. Law § 104 (1)). The notice requirements are intended to ensure that all efforts are made to notify the public of the meeting. Failure to do so does not give effect to the Open Meetings Law‟s goal of ensuring public deliberation and vote (Phillips v. County of Monroe, 18 Misc.3d 1127(A) (N.Y.Sup. 2007)).
In this case, absolutely no such effort was made. In fact, quite the opposite as a large number of parents and staff with a direct interest in the resolution regarding Miss Mussolini were gathered in the Trinity auditorium. Having been there, I am confident that there would have been a great deal of interest in a sudden, public “emergency meeting” to vote on what became Resolution 12-153-14.
