Opinion
Index No. EFCA2022-002866
04-24-2023
In the Matter of Bruce J. Karam, Petitioner, v. Utica City School District; and BOARD OF EDUCATION OF THE UTICA CITY SCHOOL DISTRICT, Respondents.
Moskowitz, Edelman & Dicker LLP by Christopher A. Priore, Esq., and Benjamin Mehic, Esq., for Respondents Utica City School District and Board of Education of the Utica City School District
Unpublished Opinion
Moskowitz, Edelman & Dicker LLP by Christopher A. Priore, Esq., and Benjamin Mehic, Esq., for Respondents
Utica City School District and Board of Education of the Utica City School District
Scott J. DelConte, J.
In this combined Article 78 and declaratory judgment action, Petitioner Bruce Karam, superintendent of Respondent Utica City School District, challenges Respondent Utica City School District Board of Education's October 18, 2022, resolution placing him on administrative leave pending an investigation into complaints of pervasive discriminatory behavior. Karam contends that the resolution should be judicially annulled because it violates both the Open Meetings Law (Public Officers Law §§ 100-111) and his employment contract (NYSCEF Doc. 1). The District and the Board move to dismiss the Petition (
I.
Karam is the Utica City School District's current superintendent, serving under an employment contract that expires on January 31, 2027 (NYSCEF Doc. 6). On October 18, 2022, by a majority vote, the Board of Education placed Karam on paid administrative leave and retained an outside law firm to investigate two formal complaints submitted by senior district employees. The complaints allege that Karam created a hostile work environment in the District by, among other things, discriminating against individuals based upon their race, ethnicity, and sexual preference. The four members of the seven-member Board who voted to place Karam on leave (President Joseph Hobika, Jr., and members Danielle N. Padula, Tennille Knoop and James Paul) were originally named as Respondents in this action. Likewise, Brian Nolan, the District's acting superintendent, was also named as a Respondent (NYSCEF Doc. 1).
The circumstances surrounding the investigation into Karam's workplace behavior began on September 29, 2022, when a formal complaint was filed by the District's Chief Operations Officer (NYSCEF Doc. 44). After receiving a copy of the COO's complaint, Board President Hobika contacted the Labor Relations & Policy Office of the Madison-Oneida Board of Cooperative Education Service ("BOCES"), which advised him - as did the Board's general counsel - that an independent workplace investigation was warranted (NYSCEF Docs. 45, 46). On October 6, 2022, the Board met in executive session, discussed the COO's accusations against Karam, and deliberated as to how to properly respond, including the possibility of suspending Karam and commencing an investigation (NYSCEF Docs. 1, 37).
Shortly after that meeting, the Board was informed that an earlier discrimination complaint had also been filed against Karam in September by the District's Chief Financial Officer. That complaint similarly claimed that Karam was creating a hostile work environment by, among other things, making racist, sexist, and homophobic comments (NYSCEF Doc. 50). Copies of both complaints were provided to Karam (NYSCEF Doc. 51), and in an email of October 17, 2022, a special Board meeting was called for October 18, 2022 to address "contracts," "personnel," and "litigation" (NYSCEF Docs. 1, 37, 52). In advance of the October 18 special meeting, Hobika consulted with Dr. Patricia Kilburn, Superintendent of the Oneida-Herkimer-Madison BOCES, who told him that she would assist the Board in finding a competent individual to serve as acting superintendent in the event that Karam was placed on leave. Dr. Kilburn also recommended that the Board promptly appoint independent outside legal counsel to assist with its investigation (NYSCEF Doc. 37). She then contacted Nolan, a former administrator in the Syracuse City School District who was working as an Independent Monitor in the New York State Education Department, and inquired if he would be available to serve as the District's acting superintendent, if needed (NYSCEF Doc. 37).
Shortly after roll call at the special Board meeting on October 18, 2022, Hobika made a motion to appoint the law firm of Ferrara Fiorenza, PC, as special counsel. That motion was then discussed in the Board's first executive session of the meeting (NYSCEF Docs. 37, 53). After exiting executive session, the Board, in a four-to-three public vote, appointed the firm as its investigative counsel (NYSCEF Doc. 1). A second executive session was then entered into, which Hobika stated was for the purposes of "personnel matters, contracts and litigation" (NYSCEF Docs. 1, 53). After the Board exited the second executive session, Board member Donald Dawes left the public meeting, and the remaining members of the Board adopted a second resolution - this time by a four-to-two public vote - "to place an employee who was discussed by the Board of Education in executive session on paid administrative leave pending the completion of an independent investigation" (NYSCEF Docs. 1, 5, 53). This resolution was followed immediately by a third resolution, which also passed by a four-to-two vote, appointing Nolan as acting superintendent (NYSCEF Doc. 1). After Nolan's appointment, the special meeting was adjourned (Id.).
II.
On December 9, 2022, Karam commenced the instant special proceeding against the District, the Board, the four Board members who had voted in favor of the resolution placing him on administrative leave - Hobika, Padula, Knoop and Paul - and Nolan (NYSCEF Doc. 1). As a combined Article 78 proceeding and CPLR 3001 declaratory judgment action, Karam's Petition alleges that the resolutions adopted at the October 18, 2022, meeting violated the Open Meetings Law because the special meeting was improperly noticed, the subject of the executive sessions was not sufficiently stated on the record, and a quorum of members had possibly met privately in advance. Karam also alleges that the Respondents breached the terms of his employment contract because he had not been given a hearing prior to being placed on administrative leave (NYSCEF Doc. 1).
Karam's Notice of Petition and Petition were served at the next scheduled Board meeting, held on December 13, 2022, after which the Board made a brief statement regarding the lawsuit on the record and then entered into an executive session "to discuss the employment history of a particular person and discuss pending litigation filed against the District and Board of Education members" (NYSCFE Docs. 37, 54). Upon exiting executive session, the Board passed a series of resolutions expressly ratifying each of the three resolutions that it had passed at the October 18, 2022, special meeting, all by a vote of four-to-three (NYSCEF Docs. 37, 54).
Two weeks later, on January 4, 2023, Karam commenced a separate civil rights action against the District and the Board, as well as Hobika, Padula, Knoop, Paul and Nolan individually, in the Northern District of New York, alleging breach of contract and due process violations (NYSCEF Doc. 61; Case No. 6:23-cv-20). That action remains pending.
In the present proceeding, prior to the scheduled return of Karam's Petition, the individual Respondents moved to dismiss for failure to state a cause of action (Motions No. 2 through 6), and the District and Board filed the instant motion to dismiss based upon objections in point of law pursuant to CPLR 3219 and 7804 (Motion No. 5). The motions were argued on March 10, 2023, at which time Karam - through his counsel - consented to discontinue all of his claims against the individual Respondents (NYSCEF Docs. 106-110). The Court reserved decision on the District and Board's motion to dismiss.
III.
A.
The Article 78 component of Karam's Petition seeks the annulment of the three operative resolutions adopted on October 18, 2022, based upon alleged material violations of Article 7 of New York's Public Officers Law (Sections 100 through 111), commonly known as the Open Meetings Law (NYSCEF Doc. 1). "The Open Meetings Law, passed in 1976 after the crisis of confidence in American politics occasioned by Watergate, was intended - as its very name suggests - to open the decision-making process of elected officials to the public while at the same time protecting the ability of the government to carry out its responsibilities" (Gordon v Village of Monticello, 87 N.Y.2d 124, 125 [1995]). This dual mandate balances public bodies' need to discuss sensitive issues in private, while simultaneously prohibiting them "from debating and deciding in private matters that they are required to debate and decide in public, i.e., 'deliberations and decisions that go into the making of public policy'" (Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 91 A.D.3d 1349, 1350 [4th Dept 2012]).
To carry out the policy's purposes effectively, Public Officers Law § 103(a) provides that "[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with" Public Officers Law § 105. Section 105, in turn, sets out eight specific topics - the only topics - that may be discussed by a public body during an executive session, including "matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person" (Zehner, 91 A.D.3d at 1349-1350). Further, "[a] public body may conduct an executive session only 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" (Sanna v Lindenhurst Board of Educ., 58 N.Y.2d 626, 627-628 [1982]).
B.
Turning to the legal and factual claims in the Petition, Karam does not - to be clear - allege that the Board's closed-door deliberations during the October 18, 2022, executive sessions involved topics that were substantively improper for an executive session, and that they should have been discussed in public. Nor could he. The Board's deliberations in executive session involved sensitive personnel matters and multiple workplace complaints relating to Karam, which Public Officers Law § 105(1)(f) explicitly states may be addressed in executive session (Plattsburgh Pub. Co. v City of Plattsburgh, 185 A.D.2d 518, 519 [3d Dept 1993]). Instead, Karam asserts in his Petition that judicial annulment is necessary because the Board violated certain technical portions of the Open Meetings Law by: (1) "holding private meetings with a quorum of members" in advance of the Board meeting (first cause of action); (2) calling a special meeting "without providing notice one week in advance" (third cause of action); and (3) "entering executive session[s] without a valid reason being provided to the public" (second, fourth and fifth causes of action) (NYSCEF Doc. 1). However, each of Karam's claims of a technical violation of the Open Meetings Law fail as a matter of law.
First, Karam's conclusory conspiracy allegations that a quorum of Board members secretly met at some unspecified date and location prior to October 18, 2022 (NYSCEF Docs. 1, 5) - made "upon information and belief" - are "mere speculation" in the face of the Board members' sworn denials of any such clandestine meeting (NYSCEF Docs. 34, 37, 62; Matter of School Transparency Org. for Parents v Harpursville Cent. Sch. Dist., 50 Misc.3d 478, 486 [Broome Cty Sup Ct 2015]; see also Mobil Oil Corp. v City of Syracuse Indus. Dev. Agency, 224 A.D.2d 15, 29 [4th Dept 1996] ["Even where a quorum is present, a meeting does not rise to the level of public business implicating the Open Meetings Law where the participants meet in a casual encounter rather than with the intent to conduct public business."]).
Second, notwithstanding Karam's claim, there is no requirement under Public Officers Law § 104(2) that "one week" advance notice of a special meeting is necessary. Instead, the statute only requires "reasonable notice," which was provided here by an email sent more than 24-hours in advance of the October 18, 2022, meeting (NYSCEF Doc. 52; Bowen v State Commission of Correction, 104 A.D.2d 238, 240 [3d Dept 1984]). Moreover, since Karam personally attended the October 18, 2022 meeting (NYSCEF Doc. 1), he was - as a matter of law - not "aggrieved by any insufficiency" in the meeting's notice and, therefore, has no basis to challenge its reasonableness (Thorne v Village of Millbrook Planning Board, 83 A.D.3d 723, 726 [2d Dept 2011]).
Third, and finally, contrary to Karam's contention, Public Officers Law § 105 requires only that a board identify "the general area or areas of the subject or subjects to be considered" before entering executive session (Sindoni v Board of Educ. of Skaneateles Central School District, 202 A.D.3d 1457, 1458 [4th Dept 2022]), as was clearly done here. Karam's argument that Zehner (91 A.D.3d 1349) requires a public body to do more than this is misplaced. Zehner did not expand the obligation of public bodies under Section 105 with respect to how much detail they must provide on the general areas to be addressed in executive sessions. Instead, Zehner affirmed that a reviewing court must look to the actual substance of what was discussed by a public body in an executive session - and not merely the body's recitation of the statutory categories beforehand - when determining whether it was proper to deliberate on that subject in executive session (Id. at 1350). While the reasons given by the Board on October 18, 2022, for entering executive sessions may have been succinctly stated - to Karam's benefit - there is no dispute that the issues actually discussed during the executive sessions on both October 6, 2022, and October 18, 2022, were sensitive personnel matters that were properly addressed in executive sessions (Public Officers Law § 105[1]). Therefore, Section 105 was not violated.
Accordingly, Karam fails to allege any actual violations of the Open Meetings Law and, as such, his first, second, third, fourth and fifth causes of action seeking to annul the October 18, 2022, resolutions of the Utica City School District Board must be dismissed as a matter of law pursuant to CPLR 3219 and 7804.
C.
Even if Karam had alleged an actual violation of the Open Meetings Law relating to the adoption of the resolutions on October 18, 2022, the Board expressly ratified those resolutions on December 13, 2022 (NYSCEF Doc. 54). Significantly, Karam does not allege any violations of the Open Meetings Law at the December 13, 2022, meeting, nor has he challenged the three ratifying resolutions which again placed him on paid administrative leave, appointed Nolan as interim superintendent, and hired special counsel to investigate the workplace complaints (NYSCEF Doc. 1). Accordingly, even if there was an Open Meetings Law violation on October 18, 2022, that warranted annulment of the Board's actions, the challenged resolutions were "sufficiently cured" by the subsequent public meeting held on December 13, 2022 (Woll v Erie County Legislature, 83 A.D.2d 792, 793 [4th Dept 1981]; see also Town of Moriah v Cole-Layer-Trumble Co., 200 A.D.2d 879, 881 [3d Dept 1994] [finding no reason to annul a board resolution "[i]n light of the Board's subsequent resolution ratifying the Board's earlier action"]).
D.
Finally, assuming, arguendo, that Karam had alleged violations of law with respect to the challenged October 18, 2022, resolutions and that there had been no subsequent ratification of those resolutions, it would, nonetheless, be an abuse of discretion to grant Karam's requested relief because he has not shown good cause for annulment. As explained in New York University v Whalen (46 N.Y.2d 734 [1978]), "not every breach of the 'Open Meetings Law' automatically triggers its enforcement sanctions" (Id. at 735). Rather, the Courts have no discretion to annul the actions of a public body for violating the Open Meetings Law unless a petitioner first meets its "burden to show good cause warranting judicial relief" (Sindoni, 202 A.D.3d at 1459; Whalen, 46 N.Y.2d at 735).
Here, again, the Board's discussions in executive session on October 18, 2022, involved sensitive personnel matters relating to Karam, which are undisputedly proper matters for executive session (Public Officers Law § 105[1][f]; Plattsburgh Pub. Co., 185 A.D.2d at 519). Where a public body has the statutory authority to address a matter within an executive session, technical errors in the way that it did so do not constitute good cause for later annulling its actions (Smithson v Ilion Housing Authority, 130 A.D.2d 965 [4th Dept 1987]). Moreover, since the operative resolutions were fully ratified, any violations of the Open Meetings Law that may have initially occurred were cured, vitiating any good cause claim for annulment (Town of Moriah, 200 A.D.2d at 881).
Karam's special proceeding has, in reality, very little to do with the application of the Open Meetings Law - a statute designed to ensure transparency and prevent officials from shielding themselves from public scrutiny - and everything to do with the fact that he wants this Court to review, and respond to, his allegations of conspiracy and private animus by the Board members who voted to place him on administrative leave (NYSCEF Doc. 1). Karam's grievance against those individuals is of a personal nature, however, and there is no redress for personal grievances under the Open Meetings Law (Sanna v Lindenhurst Board of Educ., 85 A.D.2d 157, 161-62 [2d Dept 1982] affd 58 N.Y.2d 626 [1982]). It would, therefore, be an abuse of discretion to grant Karam's requested relief and, as such, the motion to dismiss the Petition must be granted.
IV.
In addition to his Article 78 claims, Karam also alleges a cause of action pursuant to CPLR 3001 seeking a declaration that his employment contract entitled him to a hearing prior to being placed on paid administrative leave (NYSCEF Doc. 1). This is an ancillary contract claim, and "it is well established that '[a] cause of action for a declaratory judgment is unnecessary and inappropriate when the plaintiff has an adequate, alternative remedy in another form of action, such as breach of contract'" (Main Evaluations, Inc. v State, 296 A.D.2d 852, 853 [4th Dept 2002] [internal citations omitted]; see also Krichevsky v Dear, 172 A.D.3d 1370, 1370 [2d Dept 2019] [holding that a "petitioner cannot seek declaratory relief in a CPLR article 78 proceeding"]). There is no question that Karam has an adequate, alternative forum to hear this contract claims, as he has already filed a federal lawsuit that includes a nearly identical claim as presented here (NYSCEF Doc. 61). As such, the Court has the discretion to dismiss the sixth cause of action pursuant to CPLR 3211(a)(4).
However, this Court hereby declines to exercise that discretion in the interests of justice, and instead turns to the legal sufficiency of the allegations in the declaratory judgment cause of action. Simply put, Karam's employment contract does not, as he argues, prohibit him from being placed on paid administrative leave while he is under investigation for alleged discriminatory workplace practices (NYSCEF Doc. 6). Moreover, being placed on paid "administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action" (Joseph v Leavitt, 465 F.3d 87, 91 [2d Cir 2006]; see also Kavanaugh, 55 Ed Dept Rep, Decision No. 16,897 [finding that a board of education has the right to place an employee on administrative leave pending an investigation or the filing of disciplinary charges]). The documentary evidence here unequivocally establishes that the District and the Board did not breach Karam's employment agreement, but rather acted in accordance with their authority to protect employees from reported workplace discrimination (Human Rights Law § 296). Accordingly, Karam's sixth cause of action for declaratory judgment is dismissed with prejudice and on its merits pursuant to CPLR 3211(a)(1).
V.
After considering all of the papers filed in this action, and upon due deliberation, it is hereby
ORDERED and ADJUDGED that the motion of Defendants Utica City School District and the Board of Education of the Utica City School District to dismiss this hybrid special proceeding pursuant to CPLR 3211 and 7804 (Motion No. 5) is GRANTED, and it is further
ORDERED and ADJUDGED that the Verified Petition in this action is DISMISSED, with prejudice and on the merits.
PAPERS CONSIDERED:
1. Notice of Petition, dated December 9, 2022 (NYSCEF Doc. 2);
2. Verified Petition, sworn to November 30, 2022 (NYSCEF Doc. 1);
3. Affidavit of Bruce J. Karam, sworn to November 30, 2022 (NYSCEF Doc. 4);
4. Affidavit of Donald E. Dawes, sworn to December 9, 2022 (NYSCEF Doc. 5);
5. Affirmation of Giancarlo Facciponte, Esq., undated, with Exhibits 1 through 20, attached (NYSCEF Docs. 19, 6 - 18 [Exhibits 5-7 and 10-13 are video and voice recordings that were not electronically filed]);
6. Affidavit of Respondent Tennville Knoop, sworn to January 27, 2023 (NYSCEF Doc. 34);
7. Affidavit of Joseph H. Hobika, Jr., in Support of Motion to Dismiss Petition, sworn to January 27, 2022, with Exhibits A through Q, attached (NYSCEF Docs. 37-54);
8. Notice of Motion, dated January 267, 2023 (Motion No. 5; NYSCEF Doc. 58);
9. Affidavit of Christopher A. Priore, Esq., in Support of Respondents' Motion to Dismiss the Verified Petition, affirmed January 27, 2023, with Exhibits A and B, attached (NYSCEF Docs. 59-61);
10. Affidavit of Briand Nolan in Support of Respondents Motion to Dismiss the Verified Petition, sworn to January 27, 2023 (NYSCFE Doc. 62);
11. Affirmation of Giancarlo Facciponte, Esq. in Opposition (NYSCEF Doc. 86); and
12. Affidavit of Christopher A. Priore, Esq., in Further Support of Respondents' Motion to Dismiss the Verified Petition and Objections in Point of Law, affirmed March 7, 2023 (NYSCEF Doc. 92).