STATE OF NEW YORK SUPREME COURT CHAMBERS . 433 Broadway, Suite 201 . Saratoga Springs, New York 12866 THOMAS D. NOLAN, JR. .5 Telephone (518) 45178820 . Mark F. Cacozza Justice (518) 453'6944, 7 Principal Law Clerk . Lisa?A. Keating . - October 26, 2018 Secretary 10 JustiCe Girvin FerlaZzo, PC. 20 CorpOrate Woods Boulevard Albany, New York 12211 RE: DOW BOARD OF EDUCATION OF LAKE GEORGE CSD RH No. 56-1-2018- 0269 . Index No. 65408 . Dear Enclosed please ?nd original Decision and Order in the above-entitled matter.. By copy Of? . this letter, I am forwarding copy of same to attorneys-for petitioners. Original papers are herewith being transmitted to the Supreme Court Clerk/County Clerk. for filing. ?Very?truly yours, 1 . fr? THO D. NOLA Su eme CO Ice Enclosure . Little, PLLC cc: . upreme Court Clerk CORRESPONDENCE WIENCLOSURES "I'll Ilull 2018-65408 11/01/2018 03:43:49 PM Receipt 201 8480125 Pamela J. Vagel, Warren Co Clerk FILED 0 Pages STATE OF NEW SUPREME COURT . COUNTY OF WARREN a I In the Matter of the Application of PATRICIA DOW and 33? Others, Petitioners/Plaintiffs, 7 DECISION AND ORDER RJI No. 56-1-2018-0269 -against- Index No. 65408 For a Declaratory Judgment, Injunctive Relief, and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, BOARD OF EDUCATION OF LAKE GEORGE CENTRAL SCHOOL DISTRICT and LYNNE C. RUTNIK, as Superintendent of Schools RespOndentS/Defendan PRESENT: APPEARANCES: orge, New York 12845 FERLAZZO, Attorneys for Respondents/Defendants 20 Corporate Woods Boulevard Albany, New York 12211 This combined CPLR Article 78 and declaratory judgment action challenges, . substantively and procedurally, a decision of the respondent Board of Education of the Lake . George Central School District (hereafter Board) abolishing the position of assistant high school principal and creating the position of interim director for curriculum, instruction, assessment, and student support services. Petitioners are residents and/or taxpayers of the Lake George Central School District and contend that prior to the Board?s adoption of the formal resolutions on March '13, 2018 implementing those actions, the Board failed to comply with and violated the Open Meetings Law (Article 7 of the Public Of?cers Law). Stated more precisely, petitioners contend that the Board and the District?s Superintendent,respondent Lynne C. Rutnik, discussed and planned the two personnel actions during improperly convened'executive sessions rather than in regular Board meetings open to the public and further contend that the actions taken were arbitrary and . capricious, did not comport with the District?s previously adopted strategic plan and were taken without input from teachers, other District staff, and the community. I Two motions are now pending. The first by petitioners seeks an order granting a prelirninary injunction preventing the District from 1m ementing the resolutions.1 The second I i by respondents, made pre-answer, seeks an or issmg the petition/complaint on their contention that the three Open Meeting uses of action are untimely as to all meetings held prior to January 25, 2018 - necessary party, speci?cally the assistant principal whose position was elim' notbeen joined, and respondents further contend that the petitioners? Article 78 cause of action should be dismissed because petitioners lack standing, again that a necessary party, the assistant principal, has not been joined, and that alternatively based on the doctrine of primary jurisdictiOn, the matter should be resolved by the New York State Commissioner of Education. Respondents oppose the application for a preliminary injunction. Petitioners oppose 1This proceeding/action was ?led on May 18, 2018. The originally assigned justice signed the initiating order to show cause on May 25, 2018, made the application returnable on. June 22, 2018, and then recused. The two other justices assigned to Warren County also recused. The proceeding/action was then reassigned to this court on June 11, 2018. 2 dismissal. First, the background. Petitioners contend that on November 14, 2017, December 12, 2017, December 21, 2017, and January 2018, the Board and superintendent improperly discussed the personnel actions in executive sessions and failed to give proper and adequate notice to the public identifying-the subject(s) that were to be,discussed at those sessions and thus forestalled and precluded any outside input into the actions subsequently publicized and implemented.2 Petitioners contend that the reorganization pr0posal should liave been discussed during public sessions of the Board and that the ?rst noti?cation to the public that these actions were being considered and implemented came on January 26, 2018 in an e?mail the d?s resolutions formally adopting the Superintendent issued. Petitioners contend that the actions on March 13, 201 8 were therefore illeg The court ?rst considers reSpondent-s since if granted petitioners? motion is moot. First, the timeliness defense. To ure he four above identi?ed allegedly improper before the proceeding was commenced. Yet, the'?rst public notice that these personnel actions were to be considered was not given until executive sessions took place at leas our January 26, 2018 via the Superintendent?s e?mail. Therefore, it would be, incongruous to charge petitioners with having notice of what was purpOrtedly discussed during those executive sessions which, by virtue of reasons stated for conducting them and the wording used as justi?cation for 2Petitioners contend that the disclosed reasons 'for those executive sessions, namely ?discussions regarding the employment history of a particular person of the. district?, ?discussions regarding the employment history of a particular employee(s) of the district?, and ?discussions regarding upcoming contract negotiations with the Lake George Staff Association? were misleading and facile and did not constitute statutorily authorized reasons for convening an executive session. holding those executive sessions gave no notice whatsoever to the piiblic that an administrative reorganization of any type was being considered. i i The Open Meeting Law requires that a governmental body, such as the Board,-give a I reason for holding an executive session ?with some degree of particularity?and ?detail the nature of the proposed discussion? as opposed to reciting the statutory topics that permit such action,- such as stating simply ?a personnel issue?. Matter of Cutler wan of Mamakating, 137 1373 (3rd Dept 2016); Matter onehner Board of Educ. Jordan?Elbridge Cent. School Dist. 91 1349 (4th Dept 2012); Matter of Gordon Village of Monticello, 207 55, 58 I Dept 1994), mod on other grounds 87 124 (1995). Here, this proceeding was commenced withi our (4) months of 1ssuance of the ?rst public notice of the Board?s intended action and the our?: ?nds the proceeding timely insofar as it alleges the Board?s failure to the Open Meetings Law. Second, respondents argue th failure to join the individual whose position Twas eliminated requires dismissal at if titioners were to prevail and the position is ordered reestablished, that individual may have riglits to seek reemployment by the District.3 That argument lacks merit. The gravamen of the proceeding is challenging the elimination of the assistant principal position and not the removal of the particular individual holding-it. The court does not agree that the individual holding the position when the decision was made is. a necessary party. Next, the issue of petitioners? standing to assert their Article 78 based claim as parents of 3The individual has apparently secured a comparable administrative position in another school district. students and as taxpayers in the district. In'a word, precedent dictates that they have standing. Matter of Williams-burg and Greenpoint Parents Board of Trustees of State Univ. of New York, 130 638, .6390"(1 Dept 2015). .- I Lastly, the issue whether the primary jurisdiction doctrine defeats petitioners? right to pursue their Article 78 claim that the Board acted in an arbitrary and. capricious manner. Courts should refrain from exercising jurisdiction over controversies that ought to be reviewed by an administrative body having jurisdiction and poSsessing expertise and specialized knowledge. Matter of Hessney Board of Educ. of Public Schools of Tarrvtown, 228 954 (3rd Dept 1996). Education Law 310(7) permits individuals, like petitioners, to obtain the review of issues ?related to personnel matters by the New York te Commissioner of Education. In this . case, notwithstanding the procedural infirmitieg ed, the Board, acting on the recommendation of the district?s Superin a decision to eliminate one administrative position and replace it with a new admiral tiv position. The Commissioner of Education, not the court, has the background, expe I specialized knowledge to eValuate whether such. action was rational and reasonable. Accordingly, the court diSmisses petitioners? fourth cause of action based on the doctrine of primary jurisdiction. Respondents? motion is granted to the extent that the fourth cause ofaction in the complaint/petitioner is dismissed, and the motion is otherwise denied, without costs. Respondents shall within ten (10) days hereof answer the balance of the petition which seeks to annul the two resolutions on the grounds that they were adopted in violation of the Open Meeting Law. Now petitioners? motion for a preliminary injunction. Again, as re?ected in the parties? submissions, the former assistant principal has accepted alike position in another school district. There is no indication in this record whether the newly ?created replacement position has been filled. To void action taken by a public body in violation of the Open Meetings Law, the ?good cause? requirement means something more than the mere negligence of the Board in failing to comply with the requirements of the Open Meeting Law. Matter of Cutler Town of Mamakating, supra; Roberts Town Bd., 207 404 Dept 1994). A preliminary injunction constitutes ?drastic relief? and when issued, prevents a litigant from taking actions that they are otherwise legally entitled to do before the merits are adjudicated. Three elements must be shown - a probability of success on the merits, the ger of irreparable injury if an injunction were not issued, and that the equities balance i a of the party seeking the injunction. Rural eliminated position has left the distr t, ?g cause? for the court voiding the two resolutions based on violations of the Open Meeting Iiaw has not been shown; and the equities do not favor the petitioners. The ability of the Board to manage the district should not be curtailed while the legal dispute remains undecided. On this record, a preliminary injunction does .not lie. Petitioners? motion is denied, without costs. i This constitutes the decision and order of the court. The original decision and order is returned to counsel for respondents. All original motion papers are delivered to the Supreme Court Clerk/County Clerk for filing. Counsel forlrespondents is not relieved from the applicable provisions of CPLR 2220 relating to ?ling, entry, and notice of entry of the decision and order. So Ordered. October 26, 2018 Saratoga Springs, New York -: HON. THOMAS D. NOLAN Supreme Court ustic .