Paladino removed from Buffalo board
On Board Online • September 4, 2017
By Cathy Woodruff
Education Commissioner MaryEllen Elia has removed former gubernatorial candidate Carl Paladino from the Buffalo school board, citing his disclosure of confidential discussions that took place during an executive session in violation of the state Open Meetings Law.
Paladino, a real estate developer and member of the Buffalo board since 2013, indicated through his lawyer that he expects to appeal. His attorney called the removal "excessive."
In a 33-page decision released on Aug. 17, Elia found that Paladino "intentionally disregarded his legal duty to safeguard confidential material" when he wrote an article for a weekly arts publication that revealed details of board deliberations on contract negotiations with city teachers.
Paladino testified at a hearing before Elia in June that he wrote the article because he felt a moral duty to disclose information that led him to conclude that the Buffalo Teachers Federation (BTF) controls the school board and the school district, with serious financial repercussions for taxpayers.
Elia rejected Paladino's argument that he was not legally bound to keep the details of the school board's Oct. 12, 2016 executive session discussions with Superintendent Kriner Cash confidential because the contract with the union was settled and the terms were publicly known by the time the article was published in January of 2017.
"It is not (Paladino's) disclosure of factual data that was ultimately included in the final contract that constitutes a breach of his legal duties under these circumstances," the commissioner ruled. "Rather, it was the revelation of, among other things, the board's internal discussion regarding negotiating strategies during executive session."
Before Buffalo's new contract with the teachers union was approved in October, the district and the BTF had not ratified a contract since 2004, and the two sides had been locked in a years-long stalemate in their efforts to reach a new agreement.
As a result of Paladino's Jan. 5 article in Artvoice, which lambasted fellow board members and the superintendent for attitudes and behavior he characterized as weak and pandering to BTF union leaders, Elia found that Paladino compromised the district's bargaining position in future negotiations with the teachers and other district employee unions.
"These disclosures revealed potential vulnerability on the part of the superintendent ... and are of obvious relevance not only to the BTF, but also to the eight other bargaining units with which the district negotiates," the commissioner wrote. She pointed to statements from the union president, who testified in the course of a five-day hearing in June, that Paladino's disclosures "were a boon to him and the BTF because they showed that the district would easily acquiesce during contract negotiations in response to pressure."
NYSSBA General Counsel Jay Worona said Elia's decision represents an important affirmation of the duty that school board members have to keep information, opinions and advice expressed during an executive session confidential. It's also a reminder, he said, that board members should not substitute their own judgment about what should be made public for their responsibilities under the law.
"The New York State School Boards Association has, as a part of its mission, an obligation to train members on their legal roles and responsibilities," Worona said. "In that training, not only do we explain what their obligations are under the Open Meetings Law, but we also specifically inform them of their obligation to retain confidentiality in executive sessions."
During his testimony, Paladino acknowledged that he had attended NYSSBA training for new school board members but said he "may have" been reading the newspaper during some of the training and, when asked if he'd been paying attention, said "I don't remember the circumstances."
Regarding his obligation to abide by board policy, he testified, "I'm governed by it to the extent that I don't disagree with it."
Elia described Paladino's responses to questions focused on his legal responsibility for confidentiality as "evasive" and said he "demonstrated a lack of regard and appreciation for his responsibilities as a member of a board of education."
She added that Paladino had alternatives to unilateral public disclosure, such as an appeal to the commissioner or a complaint to law enforcement for investigation, if he believed his fellow board members had engaged in wrongdoing and if he believed that was a matter of public interest or concern.
"To sanction (his) behavior would allow each individual school board member to decide what information is confidential, and whether it should be released to the public," Elia wrote. "The law cannot tolerate such conduct."
The charge against Paladino for revealing confidential material from the Oct. 12 executive session was one of three brought by a majority of the board in a petition seeking his removal. Elia declined to sustain two other charges, which alleged that Paladino violated the law when he shared information about litigation involving a former contractor and about disciplinary action against a principal.
Paladino's removal was immediate, and the Buffalo board has begun seeking applicants for appointment to fill his seat. Paladino's lawyer, former state Attorney General Dennis Vacco, indicated it's likely he will appeal Elia's decision in state court. Paladino also has a case pending in federal court, accusing his fellow board members of violating his First Amendment free speech rights.
Paladino will be eligible to run again for the board one year after his removal. He expressed mixed feelings about seeking re-election, however, in an interview with WBEN radio on the day the commissioner's decision was announced. He blamed a public campaign for his ouster chiefly on "politics" and repeated his contention that other board members are controlled by leaders of the teachers' union.
"To be frank, after sitting on that board for four years and trying to move that rock up the hill, I personally don't think there's much that can be done to rectify it from within," he told the radio interviewers.
Paladino was the Republican candidate for governor against Democrat Andrew Cuomo in 2010 and more recently served as co-chair of Donald Trump's presidential campaign in New York. He was elected to his first three-year term on the board in 2013 and re-elected last year. His school board tenure has been a stormy one as he battled regularly with fellow board members.
He and his attorneys contended during the June hearing in Albany that the charges against him were a pretext for what he alleged was the board's true motivation: retribution for offensive remarks he made in December about then-President Barack Obama and First Lady Michelle Obama.
Paladino told Artvoice he hoped that in the upcoming year, the president would catch mad cow disease after having sex with a Hereford and that Michelle Obama would "return to being a male" and move to Africa to live with a gorilla. The comments were widely condemned as racist and disgraceful, particularly coming from a school board member. Paladino denied there was a racial component in what he said, but he did say he regretted the remarks during his testimony at the Albany hearing.
Buffalo board members have acknowledged that they initially planned to petition for Paladino's removal based on the Obama comments, but they ultimately opted to go ahead with charges based on the alleged Open Meetings Law violations after consulting with attorney Frank Miller.
In her decision, Elia described Paladino's argument of retaliation for free speech as "ill-suited" to the facts of the case before her and for the forum of an appeal to the education commissioner. Nonetheless, she wrote, "the record reflects that petitioner would have sought respondent's removal irrespective of his allegedly protected speech." She also said Paladino's attorneys presented no evidence that Paladino's right to free speech had been "chilled or otherwise impaired."
At a news conference, Buffalo Board President Barbara Seals-Nevergold said she hopes Paladino's departure will lead to more productive meetings for the board.
"There has been a lot that has occurred at this board table and outside that has really been due to the behavior of Mr. Paladino," Seals-Nevergold told reporters. "We're looking forward to being able to move forward without the distractions that have accompanied his behavior."
The commissioner dismissed three other petitions from others who sought Paladino's removal from the board because of his remarks about the Obamas on procedural grounds. In one case, which also requested removal of the superintendent and all other members of the school board, Elia ruled that the petition was not served properly; in the other two, Elia declared the requests moot, given her decision to remove Paladino as a result of the school board's petition.