New York (State). Superintendent of Common Schools.

Judicial decisions of the State Superintendent of Common Schools, State Superintendent of Public Instruction, State Commissioner of Education, from 1822 to 1913 online

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without a vote of the district, such trustees could legally expend $2050 and what-
ever might be necessary to grade the grounds in a suitable condition. They did



JUDICIAL decisions: officers — REMOVAL OF 451

not possess legal autliority to expend more. Any expenditure in excess of such
amount for the erection and equipment of buildings and the grading and improve-
ment of the site was an unauthorized and illegal expenditure. In making such
expenditures the trustees were guilty of a violation of law and of official duty.
If it were necessary to expend any considerable amount in excess of the appro-
priation to place the grounds and buildings in proper condition, it was the duty
of the trustees to call a special meeting of the district and permit the legal voters
thereof to direct what action should be taken. To pursue any other course would
be an unwarranted and illegal procedure. It appears that many of the taxpayers
believed improper and illegal expenditures were being made and petitioned the
trustees to call a special meeting to consider the question. The school commis-
sioner suggested to the trustees that they call such special meeting. These trus-
tees refused to call such meeting. It was a serious mistake on the part of these
trustees under the circumstances to refuse to honor such petition and to fail to
comply with the suggestion of the school commissioner. They .should have called
a special meeting of the district.

The report of this board of trustees to the animal meeting of the district in
1904 shows the following expenditures :

Expen.ses of grading, cellar, ditch, well etc.

Grading $422 55

Well 1 50 17

Cellar and chimneys 650 30

Cement, lime and brick 94 15

Tile 130 06

Labor 23188

Posts for fence 30 00

Use of pump i 00

Replacing tree ~ 00

Total $1 ;i.? 01

Less amount expended by former board 3^- 93 $'3.3" oS

Architectural work 61 67

Heating plant 45° 00

Desks and furniture 246 50

Moving and settling building 875 00

Registry of deed and lot I 40

Electric lights 47 QO

Extra work on closets and clearing lot i7 43 $1699 90

Expense of building

Bells, batteries etc ?4 3°

Carpenter labor 546 88

Cartage and car fare ' ''4

Metal ceiling 55 08

Express and freight ~ 5o

Glass 10 32

Hardware '°3 25

Labels and cards for desk ' -5

Lavatory '° 0°



452 THE UNIVERSITY OF THE STATE OF NEW YORK

Expense of huiUWng— Coiilinued

Lumber ^gg, ^^

Mason work, chimneys and \v;i11s 117 20

Paint, paste, varnish etc 65 jo

Painters' labor j,^ 55

Paper for ceilings 16 00

Pipes, tin etc 57 09

Registers 5 40

Sink I 7c

Slate boards 6352 $187791



Total expenditures $4907 8g



The report made by these trustees therefore shows that tliey expended
$4907.89 for the purposes for which they were legally authorized to expend
$^050 plus what might be necessary for grading the grounds in a suitable condi-
tion. The respondents do not attempt to state just how much they did expend
in grading the grounds. They should be able to give the exact amount expended
for that purpose. It is clear that at least $700 in addition to that expended by
the former board was expended for this purpose. Accepting this as a fair,
reasonable amount to have paid for grading the grounds, the board was authorized
to expend not more than $2750. By this liberal estimate their expenditures still
exceed the amount legally authorized by nearly $2200. All of these expenditures
were made from the fund derived from the award paid by New York City.

These res])ondents attempt to justify their conduct in making these excessive
and illegal expenditures, on the theory that section 21 of article 2, title 7 of the
Consolidated .School Law, conferred on them that power. .Sections 19 and 20
of this article and title of the school law provides for the sale of a district site.
.Section 21 provides for the use that shall be made of a fund derived from the
sale of a site. This fund, as previously stated, was obtained as an award in
condemnation proceedings. The school law makes no provision for the use of a
fund obtained in this manner. The school law does provide for the use that shall
be made of money derived from a sale of the site of a district. A fund derived
from an award made as the result of taking a site under condemnation proceed-
ings is the equivalent of a fund derived from the sale of a site. In the absence
of a provision of law to the contrary such fund must be so regarded and must
be used as the law directs a fund derived from the sale of a site to be used.

The section of law above cited must, therefore, govern the use of this fund
in question. The law reads that tliis fund " shall be applied to the expenses
incurred in procuring a new site and in removing or erecting thereon a school-
house and improving and furnishing such site and house, and their appendages,
so far as such application shall be necessary ; and the surplus, if any, shall be
devoted to the purchase of school apparatus and the support of the school as
the inhabitants at any annual meeting shall direct." This section of law does
not provide that all of such moneys shall be expended on a new site and build-
ings but only so much thereof as may be necessary. This section of law docs not



JUDICIAL decisions: officers — REMOVAL OF 453

confer on trustees the iiower to select or purchase sites or to erect or rejiair
buildings or to appropriate funds of tlie district derived from any source for
these purposes. It simply provides that this fund shall be used for certain
|)urposes. To be used for such purposes it must be appropriated by the authority
which the law directs, namely, a duly assembled school meeting.

There is no provision of the school law conferring on trustees the power to
appropriate money for a site or to determine what amount shall be paid for a
site. There is no provision of the school law conferring on trustees the power
to appropriate money for the erection of buildings or for the improvement of,
or additions to, school buildings except to the amount of $50, nor are trustees
empowered to determine what amount shall be used for such purposes. Tlie
law does not confer on trustees the power to appropriate money beyond the sum
of $50 for the purchase of school furniture. The law does, however, confer on
a district meeting the power to appropriate money for these purposes and to
determine the amount to be expended therefor (see subdivisions 7 and 8 of sec-
tion 14 and sections 17 and 18 of title 7 of the Consolidated School Law). Before
any portion of the $6518.90 could be legally used by the trustees in purchasing
a site or removing or erecting a building, it was necessary that a district meeting
authorize an appropriation therefrom and to specify the amount to be used. The
trustees could legally expend the amount thus voted but no more.

The respondents claim that the action of the district in voting $800 for
removing the old building and $1200 for repairs was illegal and not binding
upon them, on the ground that the vote was not taken at a proper meeting and
not taken by the method which the law directs. In this they are in error. Such
action was binding upon the trustees until declared illegal by proper authority.
If these respondents were correct in this contention they had no right to make
any expenditure from this fund except the $50 which the law permits trustees
to expend without a vote of the district. By this contention the trustees evidently
recognized the limitations placed on their powers by the Consolidated School
Law in relation to expenditures for the purposes under consideration. If these
expenditures were made by the respondents knowing that they were exceeding
their rightful powers, their conduct was wilful and they must stand guilty of a
wilful violation of law and neglect of duty.

The trustees were authorized by the annual meeting of 1903 to inquire into
the best mode of heating the schoolhouse. They never reported to the district on
that question, but decided on a heating system and installed it at a cost of $450.
without direction from the district to do so. It also appears from the report of
the trustees to the annual meeting of 1904 that such trustees installed a system
of electric lights in the building, put in metal ceilings, papered the walls, expended
nearly $250 for furniture and made expenditures for several other purposes
which had not been authorized. Many of these expenditures were not necessary
for the comfort or convenience of the children but added to the general attract-
iveness- of the building. It was not within the power of these trustees to decide
to make such improvements no matter how desirable they may have been. It



454 TIIH UNIVERSITY OF THE STATE OF NEW YORK

was the right of the district, under the law, to pass upon the necessity and the
desirabilit}' of making such expenditures.

It is also alleged in the petition that these trustees personally sujiplied
material, ])erformed labor and services for the district and were thereby per-
sonally interested in contracts which they, as trustees, made for the district. One
of the purposes for which it is alleged excessive and illegal expenditures were
made was grading the grounds. The oriicial records of the board show that
Trustee Quick was employed on the grading a large portion of the time between
October 5, 1903, and February 6, 1904. He received $5 per day for the services
of himself and team. These records also show that he supplied material used in
the improvements made. He received for such labor, services and material at
least $346.60. The official records of the board also show that Trustee Parkus,
who is a painter and decorator, supplied material at various times, that he was
emjiloyed much of the time between November 20, 1903 and February 20, 1904,
receiving $3.50 per day. He received for such labor, services and material at
least $303.87. The bills of Trustee Quick and Trustee Parkus for such labor,
services and material were presented to the board of trustees, audited by such
body and paid under the order of that body. Mr Parkus and JNlr Quick con-
stituted a majority of the board. They could have controlled the action of the
board. Mr Oakley offered no objection to this procedure, but on the contrary
readily concurred in it. It was an illegal and wrongful proceeding and Mr
Oakley in accjuiescing in it became equally censurable with the other two mem-
bers. In fact he appears to have been the controlling power in the board. It
is charged by petitioners and admitted by respondents that all members of the
board rendered services or performed labor for which they presented bills which
were audited officially by the board.

This board of trustees made a division of certain work among its members.
These members performed such work. As trustees they passed upon the
character and quality of the work which they as individuals performed for the
district. Again as trustees they determined the value of the services which they
as individuals rendered the district. It is this very practice which the law
prohibits. It is a violation of section 473 of the Penal Code for trustees to become
interested personally, directly or indirectly, in any contract which they arc
authorized to make for the district. The petitioners have shown that those
respondents did not make proper effort to get this work done for the district at
the lowest price consistent with substantial service. The appellants have also
shown by evidence of competent witnesses that the cost of the building and
improvements is largely in excess of their real value. Four men competent to
testify on the value of the school property in question as it now stands, swear that
the cost of erecting the buildings and making the improvements to the grounds
etc. should not have exceeded $2500, provided such sum was properly exjjended.
The respondents have failed to present competent evidence to controvert this
charge. The testimony of men who have made repairs in the locality of this
school district showing that such repairs have cost more than was anticipated is



JUDICIAL decisions: officers — REMOVAL OF 455

not sull'iciciU nor is it competent. Testimony on this point should be from men
famiHar with grading and building antl who know the cost of performing such
labor and of the materials to be used etc. Such testimony the resondents have
not offered and the allegation that the funds of the district were wastefully and
wrongfully expended is established.

Section 17 of article 2 of the Consolidated School Law rovidcs that no
schoolhouse shall be built in any school district until the plan of ventilating,
heating and lighting have been approved, in writing, by the school commissioner.
The plans of this building, showing these features were never submitted to the
school commissioner for approval and the trustees erected this building in viola-
tion of a law generally understood by the people and with which they must have
been familiar. The conduct of these trustees has been reprehensible in many
ways. They seem to have had no regard for the wishes of the people of the dis-
trict as clearly expressed in district meetings. They have shown no respect for
the law regulating their duties and limiting their powers. They decided to make
certain improvements and expenditures without regard to their legal powers or
the rights of the district and thcv i>ut into effect their decision thereon. School
districts are entitled to protection in their rights and when trustees are deter-
mined to ignore such rights this Department is bound on appeal in due form to
afford districts such protection as the law provides. The severe penalty of
removal from office will not be imposed for slight reasons or for trivial offenses
committed through a misunderstanding of the law ; but when the conduct of
trustees shows clearly that they have wilfully violated the law and wilfully
neglected their duty this penalty must be imposed. When a district, acting
within its legal powers, directs its trustees to do certain things and such trustees
fail to do as directed or deliberately exceed their powers in such matter they
are guilty of a wilful violation of law and of neglect of official duty.

School officers are to be commended for manifesting a desire to erect suitable
buildings, to properly equii) them, and improve and beautify the grounds. In
all proper and legal eft'orts to. achieve such results they will be fully sustained
by this Department. When the voters of a district refuse to properly cooperate
with trustees in such matters this Department will extend all assistance and
relief which the circumstances will warrant and the law will permit. School
officers who disregard the plainly written statutes and violate the rights of a
district to reach these ends, of course, can not be sustained.

I decide, that Frank L. Parkus and Charles S. Oakley, members of the board
of trustees of school district no. 6, town of North Salem, Westchester county,
were, and each of them was, guilty of wilful \-iolation of law and wilful neglect
and violation of dutv :

By expending illegally, excessively, exorljitantly and wrongfully the funds
of the district; by knowingly permitting members of the board of trustees of
such district to become personally interested in contracts of the district and by
auditing and paying the bills of members of the board for services performed
and material furnished; by failing to comply with the directions of the district



45^ THE UXINERSITV OF THE STATE OF NEW YORK

in many ways as charged in the mo\'ing jxipers ; and by faihng to protect the
rights, property and funds of the district as required by virtue of the offices
which they held and as the law provides.

The petition herein is sustained.

It is ordered. That Frank L. Parkus and Charles S. Oakley, and each of
them, be, and they are, and each of them is, hereby removed from office as
inembers of the board of trustees of school district no. 6, town of North Salem,
Westchester county, for wilful violation of law and wilful neglect and violation
of duty as members of such board of trustees.

It is further ordered. That Uel T. Bailey, the member of the board of trus-
tees of said district, elected at the annual meeting held in such district August
2, 1904, without unnecessary delay, call a special meeting of the legal voters of
.said district no. 6, town of North Salem, in accordance with the provisions of
section 6, title 7 of the Consolidated School Law, for the purpose of electing a
trustee whose term of office shall expire on the first Tuesday of August 1905,
in place of Frank L. Parkus, removed ; also, for the election of a trustee whose
term of office will expire on the first Tuesday in August 1906, in the place of
Charles S. Oakley, removed.



3727
>■
In the matter of the application for the removal of Isaiah M. Merrill as trustee

of school district no. 8, town of Northfield, county of Richmond.

A trustee who reported a claim against the district as paid, when in fact it was not paid,
and who received district moneys into his own hands to pay tlic same, and tlien liqui-
dated the deht by giving his personal promissory note, is guilty of a procedure which
can not be upheld.

Trustee's removal from office decreed.

Decided Novemlier 15, 1888

Draper, Sup'criiitcmicnt

Isaiah M. Merrill is one of three trustees in the district above named. lie
was elected to such office at the annual school meeting in 1886, and his term will
expire in 1889.

The petitioners allege that he has been guilty of making false reports to
district meetings. It was shown that the annual report of the trustees made
in 1887, showed that a bill for lumber in favor of J. H. Van Clief & Son
had been paid, when in fact such bill had not been paid. It seems that a brother
of Merrill was the collector of the district and that between them they received
the money which should have paid this bill. On the other hand, the trustee claims
that the report was not intended to show that such bill had been in fact paid,
but that an order had been drawn upon the collector in favor of Van Clief & Son
for the payment thereof. It is also shown that Merrill settled this bill with Van
Clief & Son on the 4th of I'cbruary 18S8, by giving to said firm his promissory



JUDICIAL decisions: officers — REMOVAL OF 457

note for tlie amount, aiul that said firm received such note in settlement of the
claim.

There are some other matters set forth in the petition for the removal of
Merrill, but I do not deem it necessary to consider them.

Sufficient appears to show that the trustee has been derelict in the duties of
his office. He does not deny that he had full knowledge of all the circumstances
and was responsible for the report to the district meeting in 1887 being made in
the form in which it was presented. If the claim of Van Clief & Son had not
actually been paid, the report should not have indicated that it had been. But
while it might be possible to overlook a misstatement of that nature upon the
ground that it was unintentional and that there was no deliberate purpose to
deceive the district meeting, it is not possible to overlook the fact that this trustee
received the money of the district into his own hands and that instead of paying
the same over to the claimant he converted the same to his own use for a long
time, and then finally settled the claim by giving his personal promissory note
iherefor.

A school trustee has no right to take into his hands moneys belonging to
the district. It is his business to draw orders upon the proper officer in settle-
ment of legitimate claims and deliver the order to the claimant, who nuist get
his money from the collector. It is cjuite possible that there has been no
deliberate purpose to defraud the district, but the conclusion is irresistible that
the trustee in this case has been guilty of a procedure which can not be upheld
as a predecent, and can not be tolerated with safety to the public interests.

Mr Merrill, the trustee, also comes before the Department with a petition
asking that the records of a certain district meeting be expunged from the official
records of the district, on the ground that such meeting was not regularly and
lawfully called. It is alleged by the respondents that the meeting referred to was
not intended to be a regular district meeting, that it was only a voluntary
assemblage of residents of the district looking to action which should be advan-
tageous to the interests of the district. It is admitted that if the records of
such a meeting have been incorporated into the records which the law requires
the clerk to keep, that the same should be exjnuiged therefrom.

It is, therefore, ordered that Isaiah M. Merrill be, and he is hereby removed
from the office of trustee in school district no. 8 of the town of Northfield, Rich-
mond county, and that the remaining members of the board call a speedy meet-
ing of the district for the purpose of filling such vacancy.



5441
In the matter of the petition of Charles J. Quinby and Robert F. Smith for the
removal of William A. Cromwell from the board of education in union free
school district no. i, town of White Plains, Westchester county.

Removal of member of board of education; authorizing expenditures in excess of
appropriation. Where a board of education directs certain specified repairs to be made
to the several school buildings in a union free school district and one of the members



45^ THE UNIVERSITY OF THE STATE OF NEW YORK

of the board acts as a committee in making such repairs, tlie fact that such member in
contracting for repairs exceeded the amount which had been' appropriated for such
repairs, is not a sufficient cause for his removal where it appears that there was no
evidence of bad faith and tliat the board itself examined the accounts for the repairs
and ordered them to be paid.

Failure to obey rules requiring bids. A board of education adopted a rule requiring that
bids sliuuld be received on all contracts exceeding the sum of $ioo. A wilful violation
of such a rule to the detriment of the district for the purpose of favoring any person
or persons in transactions respecting the district property or affairs is sufficient ground
for removal. Where the evidence shows that the violation of such rule is technical and
not wilful he should not be removed. A petitioner who seeks the removal of a member
of llie board of education because of a violation of such a rule must show by pre-
ponderance of proof that such violation was wilful and resulted in injury to the district.

Decided March lo, lyio

Charles J. Ouinby, attorney for appellant
William A. Cromwell, attorney for respondent

Draper, Coiiiinissiuncr

The petitioners, Charles J. Ouinby and Robert F. Smith, are taxpayers and
quahfied electors in union free school district no. I, town of White Plains, West-
chester county, and they ask for the removal of William A. Cromwell from his
otlice as member of the board of education of such district. The petition was
hied in this Department November 17, 1909; an answer was filed by the respond-
ent November 24, 1909, but the subsecpient pleadings and affidavits submitted by
both parties delayed the closing of the case until January 24, 1910. The ca.se
has assumed voluminous proportions; a large number of affidavits have been
submitted on both sides and a considerable amount of documentary evidence has
Ijeen adduced. It has been necessary to carefully examine all these pleadings,
affidavits and documents to reach a decision.

The proceeding is brought under section 228 of the Education Law which
provides that " For cause shown, and after giving notice of the charge and
opportunity of defense, the Commissioner of Education may remove any mem-
ber of a board of education. Wilful disobedience of any lawful requirement of
the Commissioner of Education, or a want of due diligence in obeying such
rec|uirement, or wilful violation or neglect of duty, is cause for removal." The
respondent has been served with a copy of all the charges, and has replied
thereto in detail. He has been notified of his opportunity to present oral testi-
mony in his defense. The petitioners and the respondent have expressly consented
to a decision upon the papers presented, without oral argument.

It is admitted that the respondent was a member of the board of education
of union free school district no. i, town of White Plains, which consists of the
village of White Plains, in the year 1908, and that during that year he was a
member of the committee on buildings and repairs; that at the annual meetin"



Online LibraryNew York (State). Superintendent of Common SchoolsJudicial decisions of the State Superintendent of Common Schools, State Superintendent of Public Instruction, State Commissioner of Education, from 1822 to 1913 → online text (page 57 of 188)