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Edward Lilly v. Lewiston-Porter Central School District

December 20, 2011


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



This action under 42 U.S.C. § 1983 and state tort law is brought by a former elected member of the Lewiston-Porter School Board against the Lewiston-Porter Central School District and current/former School Board members David Schaubert, Louis Palmeri, Robert Laub, and James Mezhir. Plaintiff Edward Lilly asserts Defendants violated his constitutional rights and committed malicious prosecution and intentional infliction of emotional distress in charging Plaintiff with official misconduct and removing him from the School Board. (Docket No. 1.) The individual Defendants are sued in both their official and individual capacities. (Compl. ¶ 10.) Plaintiff seeks both compensatory and equitable relief. (Compl. at p. 14.)

Pending before this Court is the Report and Recommendation of the Honorable Leslie G. Foschio, United States Magistrate Judge, making recommendations on motions to dismiss filed by Defendants. (Docket No. 19 ("R&R").) Judge Foschio recommends granting the motions with respect to the claim for malicious prosecution, but denying them in all other respects. Defendants have filed objections to the recommendations, seeking dismissal of all claims against them. (Docket Nos. 23, 24.) Plaintiff filed a response to Defendants' objections (Docket No. 26), and Defendants filed replies to Plaintiff's response.*fn1 (Docket Nos. 27, 28.)

For the reasons discussed below, this Court will adopt Judge Foschio's recommendations in part and set aside the recommendations in part.


A. Factual Background

Plaintiff Edward Lilly is a former elected member of the Lewiston-Porter School Board ("School Board"). (Compl. ¶ 13.) Plaintiff was first elected to the School Board in 1997; he was subsequently elected to additional terms in 2000, 2003, and 2006. (Compl. ¶ 13.) During Plaintiff's term in office, he and fellow School Board member Scott Stepien had a publicly antagonistic relationship with the Defendant School Board members. (See Compl. ¶¶ 35-38.) Plaintiff alleges the School Board Defendants had "great personal animus" toward him. (Compl. ¶ 38.)

In 2005, New York enacted a law requiring all school board members to complete, within the first year of their term in office, a training course on financial oversight, accountability, and fiduciary responsibilities. (R&R at 5 (citing New York Education Law § 2102-a[1]).) This law was codified as part of School Board policy in 2006. (R&R at 5.)

It is undisputed that Plaintiff was required under these provisions to complete the financial oversight training before the end of the first year of the term that commenced July 1, 2006. (R&R at 5.) Plaintiff does not dispute that he was aware of this requirement. (R&R at 5.)

On June 19, 2007, Defendant David Schaubert, then the President of the School Board, issued a Statement of Charge under New York Education Law § 1709(18) against Plaintiff.*fn2 (Compl. ¶ 14.) Plaintiff was charged with failing to timely complete the financial oversight training. (Compl. ¶ 14.) Because there were still several days left in the first year of his term, Plaintiff immediately attempted to register for an online financial oversight training course. (Compl. ¶ 15.) However, Plaintiff alleges Defendant Schaubert thwarted his efforts to comply with the requirement by telling the School District Clerk administering the course not to allow Plaintiff to register. (Compl. ¶15.)

Next, Plaintiff attempted to register for another training course being given in a classroom setting by the Board of Cooperative Educational Services ("BOCES"). (Compl. ¶ 17.) But Defendant Schaubert emailed Dr. Godshall, the BOCES superintendent, and stated: "As for the charges against Mr. Lilly and Mr. Stepien that were voted on last night; I know Mr. Lilly is tight with BOCES but all I can ask is 'don't do them any favors.' Let the legal process work as it is written." (Compl. ¶ 18.) Plaintiff alleges Dr. Godshall ignored this email and attempted to help Plaintiff register. (Compl. ¶ 19.) However, Dr. Godshall purportedly was told by Mr. Kremer, the Executive Director of the New York State School Board Association, that Mr. Kremer "had been contacted by Defendant Schaubert and was told not to allow Plaintiff and Mr. Stepien to register for the course." (Compl. ¶ 20.)

Plaintiff was unable to register for any course prior to the end of the first year of his term; he was, however, able to register for a course on July 28, 2007. (Compl. ¶ 21.) Plaintiff completed the course on that date. (Compl. ¶ 22.)

The School Board convened a special meeting on June 30, 2007. (Compl. ¶ 24.) At the meeting, the Board considered the Statement of Charge against Plaintiff and Stepien, who also had been accused of failing to timely complete the required training.*fn3

(Compl. ¶ 24.) The Statement of Charge sought the removal of Plaintiff and Stepien from the Board. (Compl. ¶ 23.) A Hearing Officer, Richard F. Griffin, was appointed to oversee the proceedings. (Compl. ¶ 25.) The Board began with a public hearing, then proceeded in a closed executive session. (Compl. ¶ 25.) During the executive session, four Board members -- Defendants Schaubert, Palmeri, Laub, and Mezhir -- signed a statement finding Plaintiff and Stepien guilty of violating the training requirement, and providing they should be removed from the Board for official misconduct. (Compl. ¶¶ 25-27.) Plaintiff and Stepien apparently were present for the executive session; they opposed the misconduct finding and the vote for their removal. (Compl. ¶¶ 25-27.) After the executive session vote, the Board's findings and decision were given to the Hearing Officer, who read them in open session. (Compl. ¶¶ 28-29.) After Plaintiff and Stepien were removed, Robert Weller and Bonnie Gifford were appointed to the School Board as their replacements. (R&R at 10-11.) Defendants Schaubert and Palmeri completed their terms of office and vacated their Board seats on June 30, 2007, just after the special Board meeting. (R&R at 10.)

Plaintiff and Stepien appealed the removal decision to the State Commissioner of Education. (Compl. ¶ 31.) Plaintiff and Stepien argued the charge of misconduct and the removal decision were premature because there were several days remaining in the first year of the term at the time they were removed. (Compl. ¶ 31.) Plaintiff demanded reinstatement to his Board office. (Compl. ¶ 32.)

On March 25, 2008, the State Commissioner of Education granted the petition. (Compl. ¶ 33.) The Commissioner ruled the removal of Plaintiff from his Board office was premature because he had not yet failed to comply with the first-year training requirement at the time of his removal. (Compl. ¶ 33.) Plaintiff and Stepien were reinstated to their Board positions. (Compl. ¶ 34.)

In 2009 and 2010, Plaintiff ran for re-election to the School Board. (Compl. ¶¶ 54, 57.) In both elections, the individual Defendants distributed fliers advising voters not to vote for Plaintiff. (Compl. ¶¶ 55, 58.) Plaintiff lost both elections. (Compl. ¶¶ 56, 60.)

B. Procedural Background

Plaintiff, through counsel, brought this § 1983 suit against Defendants Schaubert, Palmeri, Laub, and Mezhir in their individual and official capacities, alleging violations of his constitutional rights. Reading the Complaint liberally, Plaintiff alleges Defendants violated his constitutional right to procedural due process in removing him from the School Board. Plaintiff also claims Defendants violated his First Amendment rights by removing him in retaliation for his political views as a Board member. (See Compl. ¶¶ 68, 71.)

Plaintiff also brings state-law claims of malicious prosecution and intentional infliction of emotional distress against the individual Defendants. (Compl. at pp. 12-13.) Finally, Plaintiff alleges the School District is liable for the conduct of the individual

Defendants under a theory of respondent superior. (Compl. ¶ 80.)

1. Plaintiff's State Suits

Prior to filing this action, in March 2008, Plaintiff filed a suit in the New York Supreme Court, County of Niagara, against Defendants Schaubert, Palmeri, and others. Plaintiff alleged Defendants libeled and slandered Plaintiff in various public statements. (Docket No. 11, Ex. 6.) Plaintiff did not raise any claims of malicious prosecution or intentional infliction of emotional distress in that suit. The state court granted a motion for summary judgment, in part on the ground that the statements of Defendants Schaubert and Palmeri during the meeting were absolutely privileged. (Id.)

Plaintiff filed a second lawsuit against Defendant Schaubert in state court on June 30, 2008, again alleging libel and slander. (Docket No. 11, Ex. 7.) Plaintiff voluntarily dismissed this suit on September 8, 2008. (Docket No. 11, Ex. 8.)

2. Stepien's Federal Suit

On June 30, 2008, Stepien filed a suit in this District, which was heard by the Honorable Richard J. Arcara, United States District Judge. See Stepien v. Schaubert, et al., Case No. 1:08-CV-487, 2010 WL 1875763 (Feb. 23, 2010) (Report and Recommendation of the Honorable Hugh B. Scott, United States Magistrate Judge). Stepien sued Defendants Schaubert, Palmeri, Laub, and Mezhir, along with F. Warren Kahn, Karl W. Kristoff, and Hodgson Russ LLP. Stepien claimed the defendants violated his civil rights and committed libel and slander in removing him from the Board. Id., at *4.

Judge Scott issued a Report and Recommendation recommending the defendants' summary judgment motions be granted. Id., at *9. With respect to Stepien's claim under ยง 1983 against the School Board defendants, Judge Scott concluded the defendants were entitled to absolute legislative immunity for their conduct in removing Stepien from the Board. Id., at *8; see id., at *8 n.10 ("The removal of a public official, akin to impeachment, is different in nature and character than administrative personnel determinations such as the ...

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