Is The Commack School District Violating the Public Meetings Law?

Questioning the manner in which the Commack School District conducts its public meetings.

The manner in which the Commack School District (the “District”) conducts its school board meetings does not appear to comport with New York’s Public Meetings Law (hereinafter the “Open Meetings Law” or “OML”) - the purpose of which is to prevent public bodies from privately debating and deciding matters that they are required to debate and decide in an open and public manner. Open Meeting Law at http://www.dos.ny.gov/coog/openmeetlaw.html.  The lack of transparency in the conduct of its public meetings contributes to the continued frustration and distrust of the Commack community with respect to the board of education's (the "Board") operation of the District.

As anyone who has attended the District’s meetings can attest, the Board never engages in any open discussions or debate about the matters on which it votes and takes official action.  Presumably this is the case because the Board is discussing such matters and issues beforehand during executive sessions (“Executive Sessions”), which if true, violates the Open Meetings Law.  That would seem to explain why the outcomes of matters before the Board appear to be predetermined and why every vote on every issue is unanimous. 

Case in point, during the August 30, 2012 regular meeting the Board voted to accept two purported request for proposals (“RFP’s”) for contracts to perform work as the District’s Community Affairs Coordinator (FTA Consultants) and District Webmaster (StarBoard Media) for the 2012-2013 school year.  Thereafter, the Board voted at the September 12, 2012 regular meeting to authorize the President to sign the two contracts submitted in response to the RFP’s.  However, there was no public discussion by the Board of the RFP’s, the two contracts or the amounts to be paid thereunder etc., at either meeting.  So when and where were the details of these issues discussed?  Discussion of those matters in Executive Session, and out of the public domain, does not fall under the topics permitted by the Open Meeting Law, which limits discussion to only those matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.  

The Board routinely holds it “special meetings” to take place prior to its regularly scheduled public meetings (the “Special Meetings”) for the purpose of immediately adjourning into Executive Session.  See Board meeting summaries (the “Board Briefs”) at http://www.commack.k12.ny.us/boe/briefs.asp.  As the Board Briefs show, on August 30 and September 12 (and on prior occasions) the Board appears to have improperly gone directly into an Executive Session without (1) first opening the Special Meetings to the public; (2) taking a majority vote of its members to convene into Executive Session; or (3) specifically identifying the area of the subject(s) to be considered in these Executive Sessions before it adjourned into the Executive Sessions.  Nor did the Board properly disclose whatever actions were taken at these Executive Sessions (if any).  It seems pretty clear from the law that this is a no-no, because the Board has intentionally or unintentionally kept the public completely in the dark as to what is being discussed in its Executive Sessions.  See Zehner v. Board of Education of Jordan-Elbridge Central School District at http://www.dos.ny.gov/coog/zehner.html.  The proper way of adjourning into Executive Session can be seen in the Half Hollow Hills school district’s minutes.  http://www.halfhollowhills.k12.ny.us/uploaded/User_Folders/districtclerk/MARCH_14,_2012_SPECIAL.pdf.  The irony here is that the Half Hollow Hills school district, where Commack Board trustee Joseph Pennachio is employed, complies with the law but the Board on which he sits does not.

The Board’s conduct also appears to violate the OML insofar as no minutes were taken by the Board during any of its Special Meetings and so it is unknown whether the Executive Sessions were adjourned for any of the limited enumerated purposes allowed by the law.  Nor were minutes taken for any of the Executive Sessions – and so it is unknown whether such minutes were required because the purposes of the Executive Sessions were not disclosed or whether any action by formal vote of the Board was taken to appropriate public moneys.  Agenda's were also not prepared for the Special Meetings, which is improper, as well as a violation of Section 9361.2 (p.2) of the Board’s own By-Laws which states “the agenda for [special] meetings shall be prepared in the same manner as it is prepared for regular meetings.” https://docs.google.com/open?id=0B3cbjRc1NY_pODR1THp6akZaX1E.

The District also does not publish the agenda for its Board meetings until the day before the scheduled meeting date.  Since Board meetings are routinely held on Thursdays, the agenda is not posted until Wednesday.  This policy violates Section 9365 of the Board’s own By-Laws which provide that “the Agenda be published...” by 3:00 PM on the Monday prior to its scheduled Board meetings.  https://docs.google.com/open?id=0B3cbjRc1NY_paXA5bVZjVExfN00.  The District’s late publication of the Board’s agenda effectively precludes the public from having time to inquire or request copies of documents and/or records that will be discussed at the next day’s meeting.  Without timely access to such information, the public has no means by which to ascertain, prior to the Board approving any contracts, etc., whether any questions exist concerning the Board’s actions.  This serves to frustrate the spirit and intent of the Open Meetings Law.      

The District’s apparent violations of the Open Meetings Law (and its own By-Laws) is disturbing, especially in regard to the conduct of its Executive Sessions.  Whether intentional or negligent, the Board’s conduct is inexcusable.  As fiduciaries, the Board trustees are charged with the responsibility of knowing the law.  Ignorance of the law is no defense and their negligence is itself a breach of duty.  The majority of the Board is comprised of long time trustees Mary Jo Masciello (since 1998 -14 yrs and President since 2000), Joseph Pennachio (since 1992 - 10 yrs), Peter Wunsch (who is a two term trustee and a former Board president, who also served 9 years on the BOCES Board), and Deborah Guber (since 2006 - 6 yrs – and also an attorney in her own right).  While trustee Jeffrey Egan and has only been a trustee since 2010, his short service is not an excuse since all trustees undergo mandatory training pursuant to Education Law § 2102-a. http://codes.lp.findlaw.com/nycode/EDN/II/43/1/2102-a.  Superintendent Donald James is also supposed to be an experienced administrator.  Yet, none of them know the law governing the Board’s meetings?

Ironically, in 2010, Ms. Masciello received the Master of Boardsmanship Award and the Leadership in Governance Award, honoring her for the “extensive time, effort, and commitment required of board members who strive continually to expand their knowledge of education and their skill in school district governance.”  See http://commack.patch.com/articles/board-of-education-president-honored-for-commitment-to-district.   How can “skill in school district governance” not include knowing and ensuring the District complies with the law?   Even more disconcerting is that the District’s long time attorneys, Lamb & Barnosky LLP – who are supposed to know and provide guidance on the law (and gets paid for that guidance) – attend all regular and Special Meetings (and most/if not all Executive Sessions).  Arguably, the District’s counsel may be participating in a violation of the law and allowing his client to do the same, which if true would violate an attorneys professional and ethical obligations.  NY Code of Professional Responsibility DR 7-102(A)(7), (8) (“a lawyer shall not . . . [c]ounsel or assist his client in conduct that the lawyer knows to be illegal [] [or k]nowingly engage in other illegal conduct”).  http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttorneys/LawyersCodeDec2807.pdf.   

Consistent with maintaining the District’s lack of transparency, the Board continues to ignore requests that it make the full minutes of its Board meetings (as well as all agendas relating to those meetings) publicly available on the District’s website, rather than just Board Briefs summarizing the meetings - which do not reflect full information, such as how each trustee voted on specific issues.  It also makes no sense for the District to waste time creating and posting such Board Briefs when it can just post the minutes in their entirety.  Unless, of course the District’s intent is to obscure something – like violations of the OML.  The District not only refuses to publish the full meeting minutes but requires its residents to FOIL them if they want copies.  This is absurd, especially since Open Meetings Law § 103(e) states “...such records shall be posted on the website to the extent practicable as determined by the agency or the department, prior to the meeting...”  This is precisely what is done in other nearby school districts such as Northport (minutes/agendas from 2005 to present - http://northport.k12.ny.us/newboepage.htm), Half Hollow Hills (minutes/agendas from 2003 to present - http://www.halfhollowhills.k12.ny.us/page.cfm?p=976733), and Smithtown (minutes from 2006 to present  - http://www.smithtown.k12.ny.us/pages/SmithtownCSD/Documents/Board_of_Education/MeetingMinutes). 

There is no reason to believe that attempting to raise these issues directly with the Board would be anything less than futile.  Acknowledging its long standing lack of compliance with the law would necessarily mean the Board admitting that, at the very least, it was negligent and that its counsel has been providing the District with unsound legal guidance and advice – which may constitute malpractice.  Perhaps the Board would contend the public “as mere taxpayers” have no standing to complain, as it it did when opposing its residents’ intervention in the Marion Carll Farm lawsuit. 

With that said, the usual means of addressing Open Meetings Law violations is by seeking to compel the District to comply with the law by filing an Article 78 Petition in Supreme Court.  However, for now, such action is not being taken in order to avoid imposing on the District the expense of responding to such a Petition (by use of taxpayer dollars).  Instead, an advisory opinion has been requested from the NYS Committee On Open Government (“COOG”) in regard to whether the District’s conduct violates the Open Meetings Law (this opinion will be published as soon as it is received).  The District is aware of the request and is being given an opportunity to respond.  The sincere hope is that COOG’s opinion will confirm to the Board that it’s conduct is improper and that such will compel the Board to voluntarily make the appropriate changes for the benefit of everyone, without forcing the District’s residents to seek redress against them through the courts.  Stay tuned.....

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

susan r October 11, 2012 at 02:08 PM
I think there is a valid point being made here (actually more than one) the residents do need to go to the meetings. There are not many people who do attend and just like children who are left without supervision (the board) they do what they want. To make an impact we all need to show up and be heard - and if they still do not want to listen (which will probably be the case) involve the media. This is a story the news would love to get their hands on!!!! We need to take back our hard earned power!
Retired October 11, 2012 at 02:19 PM
@Lauren -The next Board meeting is October 18 at 7:30 pm (next Thursday) at the High School http://www.commack.k12.ny.us/ Maybe someone will have the courage to ask the Baord about this article and see what they have to say..!
knee jerk October 11, 2012 at 03:48 PM
Susan r: I am agreeing with you again, with a few variations. Most organizations like this School Board, hide behind the "law" or "rules" or "policy" etc etc etc. When we "uneducated types" attempt to stand before the board (in their "courtroom") we are either embarrassed or dismissed as kooks, or voilate one of "Roberts rules of Order". They pick us off one at a time. If you want to go to the School Board meetings you need a spokesman (lawyer Jim ?), who can speak intelligently and knows the rules. You need to put up an educated candidate (lawyer Jim ?). But most of all you need to put up a candidate who will run on the policy of cutting the school tax, no ifs, ands ,or buts, then roust out ALL the voters and let them decide. Most of all you have get organized, send out literature and have meetings at a "neutral" site.
pbug56 October 11, 2012 at 05:32 PM
The board highly discourages attendance at the meetings. They do this by filling up the room, parking lot and agenda with things like awards and musical presentations that should be done in the schools during the day. You get there, can't park, finally get inside, the room is overflowing, and then you have to wait an hour before all of a sudden the room empties and the 'business' begins. They especially like to do this during important meetings (like budget adoption). And if you do say something in a public session they tend to be very condescending about your comments. Hence, continued very poor attendance.
susan r October 12, 2012 at 01:19 AM
You are so right! I remember going to the Marion Carl meeting and literally sat there for 2 hours before they even started to discuss it!
commack resident October 14, 2012 at 03:13 PM
My first meeting I sat through numerous presentations and awards. I was there to hear what the board had to say regarding the budget. The board really has this down to a science. The board knows what they are doing. I hope the board members decide not to run again and give others a chance! Their time is up!!!
VT October 16, 2012 at 07:05 PM
Does anyone think the BOE will change it's ways?
pbug56 October 16, 2012 at 07:44 PM
Not without a court order.
ergodic October 16, 2012 at 08:20 PM
A previous comment mentioned that Commack HS (CHS) received a favorable national ranking by US News & World Report. Though off the main point of the article, a few notes on such rankings follow. USNews and Newsweek published their rankings of Best High Schools earlier this year. CHS was ranked #95 nationally (academic year 2009-10) in the USNews version and #267 by Newsweek (academic year 2010-11); The criteria differed significantly. The intent of the USNews rankings is to identify those schools that serve all of the students well-including the disadvantaged-and to evaluate how well students are prepared for college-level work. A 3-step process is involved. Steps 1 & 2 use state assessments in ELA & Math to identify high schools performing "better than expected" and, for demographic sub-groups, "better than the state average". The 3011/17472 high schools which passed steps 1&2 were eligible for a national ranking. Rank was determined in step 3 via computation of the "College Readiness Index" (CRI = sum of 12th grade students who took at least one AP/IB exam,weighted 25%,during HS + % of 12th grade students who passed at least one AP/IB exam, 75% weight). 83% of CHS students in 2009-10 were IB test-takers and 71% passed at least one IB test during their HS career resulting in a CRI of 74.2 for a national rank of #95 and NYS rank /#18. Jericho HS:#94 national rank 84% / 71% taking/passing at least one AP exam. cont'd
ergodic October 16, 2012 at 08:44 PM
Cont'd But not everyone agrees that the USNews approach identifies the "Best" high schools. Newsweek uses a different set of criteria to select the 1000 high schools considered most effective in turning out college-ready students. Their methodology involves 6 components: graduation rate-weight 25%, college matriculation rate-25%, AP/IB/AICE tests taken per HS-enrolled student-25%, average SAT/ACT scores-10%, average AP/IB/AICE scores-10%, and AP course offered per HS-enrolled student. The data was self-reported (2300 responded/15,000). CHS was ranked #267 nationally & #38 in NYS with a computed index of 0.67 and (FYI) average SAT/ACT/AP scores of 1631/24.8/3.5. Other examples: Jericho HS: #41 nationally & #3 NYS with index of 1.30 and 1853/27.6/3.1; Cold Spring Harbor HS: #94 in nation & #17 NYS; Harborfields HS: # 170 in nation & #27 NYS. Cont'd
ergodic October 16, 2012 at 09:37 PM
Cont'd Also, note that, in accord with the ESEA Waiver granted to NY in May ,2012, NYSED recently designated 249 high achieving (HPerf) and high progress (HProg) schools as "Reward Schools". The "designations were based on the percentage of students who demonstrated college- and career-readiness performance in ELA and Math". The list included 118 high schools, 87 of which were rated HPerf. Despite what you might expect from the USNews and Newsweek (NYS) rankings, the list did not include (for example) Commack HS, Jericho HS, Cold Spring Harbor HS, or Harborfields HS. This may seem somewhat strange, but likely represents the priorities reflected in the respective criteria used in each case. (Such schools will probably appear on a forthcoming list of NYSEd "Recognition Schools". But what is the purpose of Reward and Recognition lists? At least US News & World Report and Newsweek are trying to sell something) For details of the nysed Reward School (and other) designations, refer to http://p12.nysed.gov/accountability/ESEADesignations.html. In summary; apparently, there is either no such thing as a "list of "Best" High Schools, or there are many such lists. And If there any kudos, they should go to the students,parents/ teachers and possibly school administrators..
Concerned Comamck Citizen October 19, 2012 at 02:04 PM
I heard that the board accused Dan Fusco of perjury last night. Is this true?
pbug56 October 19, 2012 at 02:06 PM
Anyone go last night? According to the last minute as usual agenda they were having a praise the board session before doing any of their usual mystery business (all decisions made before the meeting began). What time did the actually start business?
Retired October 19, 2012 at 02:25 PM
The Board basically admitted it has not been fully complying with the open meetings law...they plan to discuss the changes they intend to make at the next Board meeting in November... Mr. T's article must have really rattled them..!!
Concerned Comamck Citizen October 19, 2012 at 02:38 PM
I heard that they accused Dan Fusco of perjury. Is this correct?
Jennifer October 19, 2012 at 03:00 PM
I don't think anyone was under oath as in a trial so I think perjury would be the wrong word. It sounded like Fusco witnessed some wrong doings and they tried to discredit his written statements made to the investigating body.
Concerned Comamck Citizen October 19, 2012 at 03:33 PM
I heard they claimed he lied and was not there to witness the "alledged" illegalities
Jennifer October 19, 2012 at 04:21 PM
I was at the meeting and heard him say a meeting was to start at 6:00PM as was posted in the agenda. He said he was there until 6:50 PM and no meeting took place while he was there so he left. The board states Fusco left at 6:26PM according to a video and started their meeting at 6:30 PM which was after Fusco left and a half hour after it was scheduled to start.
Concerned Comamck Citizen October 19, 2012 at 04:28 PM
So he lied about when he left?
Jennifer October 19, 2012 at 05:52 PM
Could be. But why would it matter about the time? He said no meeting took place while he was there. The BOE claimed they started at least a half hour late. If I went to a scheduled meeting and no one was there, I guess I would leave too and tell anyone who asked there was no meeting. I don't understand your point.
Retired October 19, 2012 at 05:57 PM
It makes no difference...The Board basically admitted it has not been fully complying with the open meetings law...END OF STORY! The question now is will they abide by the law going forward..? By the way that Wunch guy is a real condescending d**k.
VT October 19, 2012 at 06:03 PM
CCC - the meat of the story is board has apparently been violating the law, they say they are going to have a public meeting to discuss the changes they are going to implement as a result of finally being called out. So whether the dude is off by 15 minutes, who cares. You don't have enough fingers and toes to count how many times the board has lied to you.
ergodic October 26, 2012 at 06:22 PM
Following are some "facts" re grades 3-8 performance in the 2012 ELA/Math "standardized"tests for Commack and nearby districts. In particular, the percentage of grade 3-8 students who met/exceeded NYS proficiency standards(Levels 3&4) and the associated Composite P.I. (Performance Index- nysed metric with max value = 200) is shown. District------------% grade 3-8 students----------Composite ---------------------who met/exceeded -----------------P.I. ---------------------nys proficiency stds ---------------------2012 ELA 2012Math CldSprngHrbr-------82.2-----------88.3-------------183.7 Harborfields---------80.9-----------86.8-------------182.1 KingsPark.-----------78.6-----------83.5-------------178.6 Smithtown.-----------78.3-----------86.7-------------180.4 HalfHollowHills-------77.1-----------86.9-------------179.5 Elwood----------------77.0-----------83.7-------------178.0 Happauge------------75.9-----------82.4-------------176.4 Nthpt-ENthpt---------74.2-----------79.9-------------174.3 Commack.------------73.8-----------82.9-------------175.7 --- 9-District Aver-------77.0-----------84.7-------------178.5 The data shows that, in this group, Commack grade 3-8 performance ranked 9/9 in ELA, 7/9 in Math, and 8/9 in Perf Indx. It is concluded that there is considerable room for improvement. (Additional data comparing ELA results in 2011 &2012 are shown in comments for http://commack.patch.com/articles/commack-holds-steady-in-nys-test-scores).
pbug56 October 26, 2012 at 11:24 PM
Silly me, I thought Commack was the best school district in the country! After all, the board tries to make is think that, and what they pay the top bosses one would think they were the absolute best too!
ITS ALL ABOUT THE SPENDING October 27, 2012 at 12:13 AM
By all means, dont suggest that they close the gap.........ill be paying another $4,000 a year in school taxes.....LOL
ITS ALL ABOUT THE SPENDING October 27, 2012 at 12:16 AM
You mean "we're number nine!!" Crud......Ive gotten so used to hearing the school district chant "We're number one!!!!" Maybe we can move up a notch or two in the rankings if the super had more days on the job than off it.
knee jerk October 27, 2012 at 02:24 AM
We need Carol Hankin, Syosset LOVES her.
Will February 06, 2013 at 03:21 AM
Evidently So!!! Special meeting announced for Feb 6th to discuss the violations and the required changes http://www.commack.k12.ny.us/boe/agenda/agenda2-6-13.pdf
VTZ February 06, 2013 at 03:49 AM
Only proves what everybody already knew.
pbug56 February 06, 2013 at 05:25 AM
Funny, I don't recall receiving any notice - other then Will's comments via Patch, of this meeting. And I'm a bit curious about the other item on the agenda regarding one of the school buildings (and its tenant).


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