State Education Commissioner MaryEllen Elia said she removed Carl P. Paladino from the Buffalo School Board because he disclosed confidential information from an executive session, but few believe that was the real reason.
“No one at all,” said Paul Cambria, a Buffalo defense attorney.
Many believe it was really Paladino's racist statement about President and First Lady Obama that eventually got him booted.
And legal experts, like Cambria, wonder whether the commissioner’s stated reason for why she removed Paladino will hold up in court on appeal, which is where this all appears headed.
While many cheered the commissioner’s decision Thursday to remove Paladino from the School Board, her explanation also unleashed plenty of Friday-morning quarterbacking.
The Buffalo News reached out to a half-dozen legal and education experts, who have been following the Paladino case.
“I was surprised at the removal,” Cambria said. “It seems to me that, from the facts you can glean from reading the public press that there wasn’t any actual harm caused and it would seem to me that something less than removal would have been appropriate, especially because he was in elected office. Removal is actually a capital punishment for something like this.”
Count Arthur J. Giacalone among those who is glad Paladino is out.
“There’s no doubt he violated the rules on the books,” said Giacalone, a longtime area attorney. “The clear letter of the law is he violated that code of conduct and state law gives power to remove you for violating such a school board rule.”
Robert J. Freeman, executive director for the Committee on Open Government, said he is no fan of Paladino either.
But, Freeman said, Elia's ruling was dead wrong — and cause for concern.
One, Freeman said, “confidential” is vastly overused by government officials.
And two, he noted, the decision constantly refers to “personnel” as a basis for going into executive session, but that word appears nowhere in the eight grounds for entering into executive session.
“Someone on nearly every board is willing to disclose information after an executive session,” Freeman said. “If that represented a violation of law, hundreds of city council members, town board members and, yes, school board members would have been booted from their positions, but that simply doesn’t happen."
“Whether it’s good or wise or ethical to divulge what occurred during an executive session is separate from whether it is contrary to law,” he said.
And Giacalone, while satisfied that Paladino was removed, would tend to agree.
“The question becomes: Is everything you learned in executive session actually treated as confidential? And that is a really tricky question,” he said. “Just because it’s in executive session and we talk about it in secret, does not mean it’s automatically protected confidential information.”
In fact, Elia's decision is likely something to ponder for every board in New York that is allowed to go into executive session under the Open Meetings Law, Giacalone said.
“We’re pleased,” said Jay Worona, counsel for the New York State School Boards Association, “not as it affects Carl Paladino, but as it affects our ability as an organization to continue to instruct school board members what the parameters of the law are.”
Worona understands concerns that this would open the door for board members to be thrown off for every little leak, but he said the commissioner’s decision made it clear it was Paladino’s “willful violation” that led to his removal.
Elia used Paladino's own words from his hearing in June to conclude he would continue to violate those rules if he felt it was in the best public interest.
Cambria, though, questioned how harmful Paladino's public disclosures about the new teachers contact were, especially if they were published in January — three months after the contract was ratified.
“How can it be detrimental if the contract is over?” Cambria said. "Should that result in removal from public office? I just think that’s a real stretch.”
Margaret Murphy, too, perused the commissioner's 33-page written decision after it was released.
“I, quite frankly, couldn’t follow it,” said Murphy, an attorney who had served as counsel for Buffalo schools and handled cases involving school boards.
Six of Paladino’s colleagues on the School Board first sought his removal for his Obama comments published in Artvoice. They quickly changed course on the advice of their attorney who said that would be infringing on his right to free speech.
The board majority, instead, argued that Paladino violated policy when in January he published confidential information, also in Artvoice, about the new teachers contract discussed privately in executive session.
Elia agreed in her ruling.
“What did Mr. Paladino say in the Artvoice article that could only come in executive session and no other source?” Murphy said. “If it’s discussed and rumored about outside, it’s not confidential.”
Cambria would expect Paladino’s legal team to be granted a stay to stop his removal from office pending the exhaustion of an appeal.
That would be done in State Supreme Court in Albany, where a judge would decide on the timetable, Cambria said.
“I wouldn’t be surprised if it were a two or three month process,” Cambria said.
The commissioner, however, wrote a “solid” opinion based on narrow legal grounds posed by the board’s attorney, said David Bloomfield, professor of educational leadership, law and policy at Brooklyn College.
“Commissioner’s decisions are given great weight by the appellate courts, requiring a finding that her judgment was “arbitrary and capricious,” Bloomfield said. “But since her opinion involves a reading of how executive sessions should be handled, a matter that conceivably goes beyond the Education Law, Paladino has a good — though not likely — chance of winning on appeal.”
“Normally, these things are impossible to overturn,” Murphy said. “If the commissioner rules it’s over — stick a fork in it.”
But the courts will find a big disparity between what the Committee on Open Government and state education commissioner deem confidential, she said, which is what continues to make the Paladino case such an interesting legal study.