The problem with the school board ethics committee and its decision

The April 15 resignations of Hon. James A. McLeod and Hon. Craig D. Hannah from the ethics committee that was formed to investigate alleged wrongdoing by members of the school board were in fact long overdue. That’s because both judges were wrongly serving in those positions, according to the Official Compilation of Codes, Rules and Regulations of the State of New York. (See the April 14 post on AV Daily at Artvoice.com, titled “Who’s to Judge?”)

Those rules state that “A full-time judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice.” Weighing in on matters of the school board does not meet those criteria.

Thus, the entire ethics probe into leaks from an alleged January 29 executive session of the school board to Buffalo News reporter Mark Sommer may be flawed, as it was supervised by ethics committee chairman McLeod, who never should have accepted such a position in the first place.

However, there is a more fundamental reason why the probe into the alleged leaks is a waste of time and energy, only serving to distract us all from the real issues at hand. That’s because the alleged executive session was not, in fact, an executive session at all.

According to the Open Meetings Law, a public body like the school board can only enter into an executive session during the course of a regularly scheduled meeting of the body. Section 105 of the Open Meetings Law addresses the conduct of executive sessions and states:

Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys:

a. matters which will imperil the public safety if disclosed;

b. any matter which may disclose the identity of a law enforcement agent or informer;

c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed

d. discussions regarding proposed, pending or current litigation;

e. collective negotiations pursuant to article fourteen of the civil service law;

f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;

g. the preparation, grading or administration of examinations; and proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.

The Tuesday, January 29 session was a Special Meeting—one that can be called outside the regularly scheduled public meetings of the school board that take place every other Wednesday.

A Special Meeting may be called to discuss one major subject that requires immediate attention of the body. According to the official meeting minutes from January 29, the purpose of the Special Meeting was “to review the Phase IV recommendations of the Superintendent and his senior staff.”

The law is clear. In order for a public body to enter into executive session, a motion must be made during the course of a regular meeting. Another board member must then second the motion. Then the motion must pass by a majority vote of the board. Only then can the group adjourn into executive session.

None of that occurred, according to the official minutes of the two Special Meetings that appear to have taken place on that date. The first set of minutes is available at the school district’s Web site (buffaloschools.org), stating that the purpose of the Special Meeting was “to consider the first renewal extension for Enterprise Charter School.” Those minutes indicate that the meeting took place from 5pm until 5:29pm, and is signed by senior stenographer Emlyn Rivera.

The second set of minutes document another Special Meeting, which was called to “review the Phase IV recommendations of the Superintendent and his senior staff.” This meeting was called to order at approximately 5:30pm and adjourned at approximately 7:20pm. This official account was submitted and signed by Chief Financial and Operating Officer Gary Crosby and Pamela D. Cahill, board chairperson of the Finance & Operations Committee. (The document is available for public inspection on AV Daily at Artvoice.com.) Neither of these two sets of minutes documents any motion to go into executive session.

Since the evidence does not support claims that there was in fact a legitimate executive session of the board, none of the spurious accusations flung by embattled board member Christopher Jacobs—who initiated the investigation into suspected leaks—are well founded. As such, everything spoken in the fraudulent executive session is a matter of public record, including comments by Superintendent James Williams, specifically that dismissed McKinley girls’ basketball coach Michelle Stiles was a concern because she is a lesbian—a description Stiles denies as untrue.

Despite his resignation, Judge McLeod had no problem completing his report on the investigation, and announced to local TV news outlets that his probe had revealed that one of four board members—Pamela Cahill, Ralph Hernandez, Catherine Nugent Panepinto, and Louis Petrucci—“acknowledged that they had conversations with Mark Sommer on or after Tuesday, January 29, 2008, but before Mr. Sommer’s February 1, 2008 article was published in the Buffalo News.”

The official report on the review of the February 13, 2008 complaint of Board Member Christopher L. Jacobs attempts to explain away the issue this way:

“First, concerning whether the Buffalo Board of Education held an ‘executive session’ on January 29th, 2008, we conclude unanimously that an ‘executive session’ was held on that date. Indeed, it was acknowledged by everyone who testified that the issues that were presented and discussed relating to the McKinley High School matter were ‘confidential.’”

The problem with this conclusion is that it is not in keeping with the law. One cannot declare something to have been an executive session after the fact just because some of the parties involved would like the information to remain “confidential.” That’s just not how it works. No one, including a full-time judge sitting on an ethics panel (in violation of the rules of the State of New York), may declare that an executive session took place on January 29 just because it looked like, and seemed like, an authentic executive session.

There are no magic words that can make that the case, no magic gavel that can be waved over the official meeting minutes to make it true.

Enough is enough

Those are the facts.

Here’s my two cents: Enough time has been spent by the Buffalo Schools administration in attempts to bring down certain board members who do not march in lock step with the current superintendent. It is a frequent refrain from supporters of Dr. James Williams’s regime that some board members (i.e. Nugent Panepinto, Cahill, Hernandez, and Petrucci) are “out of control.”

The reality is that all of the Buffalo school board members are elected public officials. They are not hired employees of the system but public servants sent to their positions by the democratic process. You and I sent them there as a result of our decisions in the voting booth. We sent them there as our voice, to advocate for our children in a vast system in which, too often, small voices are simply extinguished.

It is not for anyone in the schools administration to observe that the board is “out of control” simply because they are speaking up for the concerns of their constituents. The school board is not the administration’s to control. The opposite should be true: The school board is intended to help to keep the administration under control.

It is not at the discretion of the superintendent to hire or fire school board members, as he did Human Resources head Joy Trotter—an administration employee—who was thrown under the bus in the wake of the Discovery School incident when the superintendent explained that he doesn’t read any of his mail and had depended on Trotter to make the right decisions about the allegation of molestation of a young child by a teacher’s aide.

What’s most troubling is the way some members of the school board, including board president Mary Ruth Kapsiak, take time away from board meetings to lecture other board members not to speak with the press, as Kapsiak did at length at the last regular board meeting. As the room overflowed with citizens waiting to address the board about the Discovery School incident, she went so far as to imply that many of the board’s problems were in fact the product of media reports and not the result of bungled policies and practices.

It’s a shame that she chooses to view the ongoing scandals within our schools as the product of media scrutiny. The even bigger shame will be on our community as a whole if we allow such misguided opinions to stand.

—buck quigley

Download documents referred to in this article (Adobe PDF format):
• Board of Education special meeting minutes (Jan 29, 2008)
• Finance & Operations Committee Minutes (Jan 29, 2008)
• Ethics Committee Ruling
• Rules