When the Buffalo School Board voted Thursday to ask State Education Commissioner MaryEllen Elia to remove Carl P. Paladino from the panel, it shifted the burden of making that controversial decision off its own shoulders.
The board could have voted to remove Paladino for official misconduct, as other boards have done in the past. Instead, it gave Paladino 24 hours to resign before it will ask the commissioner to step in.
Now, Elia finds herself in the middle of a politically charged situation in which she will have to determine whether Paladino's comments about President Obama and the first lady were so outrageous that they meet the legal standards for removing an elected official. In an article for Artvoice, Paladino said he wished Obama would die of mad cow disease and said Michelle Obama should live with a gorilla.
One former member of the Buffalo School Board believes the decision should be made locally.
"I appreciate that the criterion for removal is very narrow, however, I believe that to remove an elected school board member, overturning an election, it should be done by the Board of Education, providing for transparent, open hearings and ensuring due process," said former School Board President James Sampson. "The Board of Education should not defer to the Commissioner who is far removed from our community and whose decision is essentially made behind closed doors. It is messy but the right thing to do. "
Board member Hope Jay, who initiated the vote, said she did not think any of the state's large urban district's could remove elected members, but three attorneys contacted by the News this week said the board does have the authority - but would have to make a case for official misconduct. And if the board does elect to remove one of its members, that person can appeal to the commissioner of education.
The commissioner has somewhat broader authority and can remove board members for neglecting duties or violating state law. In its appeal to Elia, the Buffalo School Board argues that Paladino violated the state's Dignity for All Students Act, which requires school districts to provide students with an environment free of discrimination, harassment and bullying. The law went into effect in 2012, but is not believed to have been used in the removal of an elected official.
"If any of our Buffalo Public School children said any one of these offensive remarks ... the student would be suspended," said board member Paulette Woods. "We should also be held accountable for our words and our actions."
Now, Elia will have to weigh the board's argument for Paladino's removal against his first amendment rights. Paladino will have an opportunity to defend himself to the commissioner, and could appeal any adverse ruling against him in court.
Along with the potential of legal ramifications, Elia will have to make that decision amid pressure from the state teachers union and state Board of Regents. She already has found herself at odds sometimes with both because of her stances on education policies.
It is not unheard of for education commissioners to remove school board members from office. Education commissioners have removed four Western New York school board members in the last 24 years.
But some local boards have made decisions to throw off members charged with misconduct, and the commissioners have upheld the local boards.
Paladino criticized the board’s decision in a statement released Thursday. “The Board of Education’s action today is certainly not an illustration of a profile in courage or leadership,” he wrote.
The case against Paladino is unique because it focuses on things he said - not did, which typically is what triggers a removal.
Paladino's long political history and pattern of abusive remarks also could be factors. Many of his opponents are leading the effort to remove him.
So are those at times at odds with Elia, whose positions on education policy are often not in line with the New York State United Teachers and more recently her bosses on The Board of Regents. Both groups have taken stands against Paladino's comments and appear to be pressuring Elia to remove him.
Elia came to New York with a national reputation as a reformer and champion of accountability for schools and teachers. But since then, several Regents have been replaced by ones who are critical of high stakes testing and penalties for schools that aren’t performing well.
That includes Board of Regents Chancellor Betty A. Rosa, who has said she would opt her children out of standardized tests and was among the first to issue a statement condemning Paladino for his remarks.
The local representative to the Board of Regents said Rosa sent the statement on behalf of all 17 members and echoed the concerns about his remarks.
“Betty has spoken to (Elia) and has asked for some insight into legally what we can do and what we can’t,” said local Regent Catherine Fisher Collins. “We’re trying to make this right.”
When asked whether the Board of Regents had any authority to remove Paladino, Collins said it is her understanding only the commissioner can act.
“But she works on behalf of us anyway,” Collins added.
Although Elia has declined to comment on the case, her spokeswoman has indicated the education department is reviewing its options in case she is called on to make a decision.
"We will continue to closely monitor the actions by the Buffalo School Board, the Buffalo Parent-Teacher Organization and others on this matter," said spokeswoman Emily DeSantis. "Once we receive an application for removal, we will review it as quickly as possible. We continue to review all of our options."