The Buffalo School Board will vote Thursday on a resolution seeking to oust Carl P. Paladino from his position, giving him 24 hours to resign before calling on State Education Commissioner MaryEllen Elia to remove him.
The resolution is being submitted by newcomer Hope Jay, and is signed by six of the nine board members – including all three newly elected officials – essentially guaranteeing that it will pass. Patti Pierce and Larry Quinn, both Paladino allies, did not sign it.
In the resolution, Jay writes that Paladino is an elected official charged with representing children and families in a district where more than 70 percent of students are minorities.
"Mr. Paladino took an oath to ensure that students are afforded an environment which is free from fear and respects diversity within the school district and the community and is subject to all
district policies ... " the resolution states. "These unambiguously racist, morally repugnant, flagrantly disrespectful, inflammatory and inexcusable comments by Mr. Paladino have garnered both local, national, and international attention that reflects negatively on the Buffalo Board of Education, the City of Buffalo and its leadership and its citizens ... "
It goes on to argue that Paladino's statements violate the state constitution and Dignity for All Students Act, which guarantees all students the right to an education free of discrimination and harassment.
Shortly after Jay released her resolution, Paladino called into WBEN radio reaffirming that he will not resign from the board. He is not expected to attend Thursday.
"I went in there with a purpose," he said. "I got rid of a couple of bad superintendents. A couple of bad board members who didn't deserve to be there... I exposed the underbelly as best I could. I was on a mission."
“If I'm off of that Board of Education no one's going to chase these things," he added later in the interview.
Paladino also stated that he did not think any effort to remove him would hold up in court.
"It would be a stretch of their discretion to try and take me out," he said.
New York State Education Commissioner MaryEllen Elia has declined to comment on the situation because she may be called on to step in as an impartial judge and make a decision.
But on Wednesday, her office released its boldest statement yet, saying they are reviewing their options and monitoring the situation.
“We are in the process of reviewing all of our options in this unusual situation and will closely watch the actions taken by the Buffalo Board of Education at tomorrow’s meeting," State Education Department Spokeswoman Emily DeSantis wrote in a statement.
The resolution comes less than a week after Paladino acknowledged making the comments to Artvoice in a response to a year end survey.
Since then, an online petition seeking his removal has garnered thousands of signatures.
Removing an elected official from office, however, is not an easy task and the rules for ousting a school board member have been subject to different interpretations and precedents.
Here is a primer on how it works:
Who can remove a school board member from office?
In New York, either the local school board or state education commissioner can remove a board member.
Several attorneys familiar with New York's education law agreed the Buffalo School Board has the authority. The question becomes whether Paladino's actions meet the legal criteria for dismissal.
What are the grounds for removal?
A school board may remove any of its members for "official misconduct," or misconduct related to duties as an elected official. That could mean an unauthorized abuse of power, such as settling employee grievances or directing overtime work without board approval. There is also some debate about when board members are acting in their capacity as elected officials, as opposed to private citizens.
The commissioner can remove a board member for willfully neglecting duties or disobeying the law. Jay's resolution argues that Paladino's statements about President and First Lady Obama 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.
There is precedent for the commissioner to remove board members for behavior that interferes with the board's ability to function and conduct business.
What is the process for a school board to remove a school board member?
Board members have a right to due process prior to removal. A school board acting to remove a member must issue a notice and allow the accused a hearing to defend himself or herself. The board could only make a decision following that hearing.
If the board votes to remove a fellow member, that person has the right to appeal the decision to the commissioner of education, who reviews the case and decides whether to uphold the decision.
What is the process for the state education commissioner to remove a member?
Anyone seeking removal of a board member by the commissioner must file a petition for the commissioner to act. The required forms and materials are available on the state education department website. Simply sending a letter isn't enough.
The commissioner reviews the facts of the case and any relevant materials. There is not typically a hearing.
Is there precedent for removing a board member?
Education commissioners have removed four Western New York school board members in the last 24 years. Education commissioners also have upheld some local boards that have thrown off board members charged with misconduct. The local board members who have been removed were ousted for things that they did – official misconduct – not for things that they said.
How long does the process take?
Appealing to the education commissioner usually is not a speedy process. The commissioner’s legal staff will not review the petition until the person charged has filed a response. That process usually takes about eight weeks after the original petition is filed, unless the parties receive extensions.
Once the file is completed, the commissioner’s Office of Counsel tries to issue a decision within six to eight months, or eight to 10 months after the petition was filed, according to its website. But with hundreds of petitions to the commissioner filed every year for a variety of actions, there is no guarantee of a specific time frame.
Who is seeking Paladino's removal?
Thousands of people have signed online petitions and several local officials have called for Paladino to resign or be removed from office.
Several political leaders, including Gov. Andrew Cuomo, have condemned Paladino's statement, but have not gone so far as to demand that he be removed. Erie County Executive Mark Poloncarz did call on him to resign.
The Buffalo School Board will meet Thursday to vote on the resolution seeking his removal, if he doesn't step down.
What will the likely arguments for and against removal be in this case?
Ultimately, if the board or commissioner argues that Paladino's statement qualifies as official misconduct – or interferes with the board's ability to conduct business – it will have to weigh that against his first amendment right to free speech. Board members are not typically removed for things that they said.
The board or the commissioner also would have to decide whether Paladino made the comments while acting as an elected official, which could slice two ways. There have been arguments that elected officials should be held to an exemplary standard of behavior. But board members also enjoy legal protections of immunity if it can be determined they were acting in an official capacity.
Jay's point about Paladino violating the Dignity for All Students Act could pave the way for a removal case based on his violation of state law. The law went into effect in 2012, but is not believed to have been used in the removal of an elected official.
What are the political dynamics going on behind the scenes?
The Paladino situation is unprecedented in many ways, from the extreme nature of his remarks to the fact they caught national attention.
It is also complicated by his long history of political involvement – and penchant for making enemies.
He has been at odds with Gov. Andrew M. Cuomo since the two faced off for governor in 2010. Cuomo was among the first to come out last week condemning Paladino's comments. More recently Paladino served as co-chairman of President-elect Donald J. Trump's New York campaign, putting him on a stage to garner national attention. Trump's staff has condemned Paladino's statements about Obama.
Since joining the Buffalo School Board, Paladino also been a harsh critic of the teachers union.
Now, his political foes are among those leading the charge to oust him.
Is there any other recourse?
Neither the School Board nor the education commissioner has the authority to censure or reprimand a school board member. The board can criticize a member for poor judgment, but any such action must be carefully worded to avoid the tone of formal disciplinary charges.