Elia to rule on Buffalo petition to remove Paladino from board

by Cathy Woodruff

On Board Online • July 3, 2017

By Cathy Woodruff
Senior Writer
Eric D. Randall

Following a rare, judicial-style hearing at the State Education Department, Education Commissioner MaryEllen Elia is weighing a request from a majority of the Buffalo school board to remove a fellow board member, former gubernatorial candidate Carl Paladino, for allegedly disclosing confidential information discussed in executive sessions.

The charges against Paladino alleged that, in an email copied to members of the press, he shared confidential information about litigation discussed during an executive session in December. The school board's petition also alleged that, in a January article for a weekly newspaper, Paladino revealed more confidential information about a personnel matter, labor negotiations and attorney-client discussions from an executive session held in October.

Five days of testimony and legal arguments exposed deep divisions and distrust among individual members and factions of the Buffalo board. While board special counsel Frank Miller portrayed Paladino as a loose cannon who has jeopardized future labor negotiations with unlawful disclosures, Paladino testified that he had a moral obligation to the people who elected him to expose how, in his view, the Buffalo Teachers Association controls the board.

"I have every right to expose a rigged contract," he testified. "I find people with a very deceptive and diabolical agenda have controlled our education system for a long time, and that's why we have such dysfunction."

Paladino's attorney, former state Attorney General Dennis Vacco, called the board's charges a pretext. He argued that the charges actually were a response to Paladino's comments published in December about then-President Barack Obama and his wife, Michelle. Paladino said in those published comments that he hoped Obama "catches mad cow disease" and that Michelle would "return to being a male" and move to Zimbabwe to live in a cave with a gorilla.

Paladino testified that "I sincerely regret my words" about the Obamas. "I regret saying them and thinking them." He also said, "There is no excuse for me thinking the way I was at that moment."

Vacco argued that the comments about the Obamas, while "low" and "offensive," were protected by the First Amendment. He pointed out that the Buffalo board's original resolution, which demanded that Paladino resign with 24 hours or face action seeking his involuntary removal from the board, referred only to his comments about the Obamas.

A subsequent resolution authorizing legal action only concerned the alleged improper disclosures of confidential information, and Vacco asserted that was because the board majority wanted to get rid of someone they viewed as a political nemesis by any workable means.

In his closing statement to Elia, Vacco repeatedly pointed to a comment attributed to one of the board members who is seeking Paladino's removal: "If we can't get him on that, we can get him on this."

Vacco asserted that the board petition's current focus on executive session disclosures was a pretext for an attack on Paladino's free speech rights from "a board majority hell-bent on getting rid of Carl Paladino because he questions the status quo."

"This is part of an elaborate subterfuge to get you to do what they cannot do," Vacco told Elia in his summation.

"To remove Carl would be a setback to transparency, honesty and, ultimately, to the best interests of the district," Vacco said. "The Buffalo Board of Education is a dysfunctional mess. If you remove Carl, you will deprive the community of an important advocate without fixing this mess."

He also charged that because motions to go into executive sessions did not specify the subject matter, the closed sessions were not properly convened, negating confidentiality protections.

Miller, representing the six-member board majority, described Vacco's arguments as an attempt to distract attention from the substance of the case - the charge that Paladino improperly shared the content of legally protected discussions and information.

Paladino's disclosures of confidential information in a newspaper article he authored informed the union about the effectiveness of its negotiating strategies, Miller said, citing testimony of Phil Rumore, president of the Buffalo Teachers Federation. The disclosures included Paladino's view of funding authorized to settle the contract and his description of the superintendent as rattled by a strike threat.

The state Open Meetings Law is intended to protect and encourage frank discussion among board members, Miller said. And while some witnesses disputed the accuracy of Paladino's reporting on the executive sessions, Miller said Paladino's willingness to disclose information from executive sessions will undermine the Buffalo board's ability to function, if he remains on the board.

In addition to Paladino's description of the contract strategy discussions, the topics at issue during the executive session included a lawsuit involving a builder and disciplinary action that was being initiated against an employee suspected of manipulating graduation rates.

"These violations of the Open Meetings Law were serious," Miller said. He rejected Paladino's contention that public interest in the details of the meetings - particularly those related to the negotiations with the teachers' union - outweighed any need or expectation of confidentiality on the part of other board members or to protect the district's interest.

Miller noted that Paladino's article offering up confidential board information came shortly after his much-criticized comments about the Obamas. "He was pursuing a personal interest by disclosing that information," Miller said. "He wanted to get back into the public eye as a champion of the people."

However, the comments about the Obamas "are not the reason for this petition," Miller said. After disputing Paladino's contention that the teachers' union wields outsized influence and suggestions that the executive sessions were improperly convened, Miller added, "my clients are not on trial here."

After the hearing concluded, board President Barbara Seals Nevergold acknowledged that she and other members of the board were "very, very upset" by Paladino's comments on the Obamas. But she said the merits of the board's case stand independently from those feelings.

"One of the tools that the board of education has to do its work is an executive session, where members can freely discuss issues that we will bring into the public arena perhaps at a later date," she said.

During an executive session, she said, "each member has an ability to express their views, to be honest, to be transparent about what they're thinking and to have confidence that information will not be disclosed without the permission of all the board members."

"It is just crucial to the function of the board," she said. "And so, this is the reason we brought this case."

Elia has not indicated when she expects to rule in the case. She set deadlines in mid-July for further briefs in the case and said she would rule sometime after those legal documents are submitted.

Meanwhile, earlier this month, Paladino filed a federal lawsuit in U.S. District Court seeking compensatory damages from fellow board members involved in the petition for his removal.

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