Former school board candidate threatens lawsuit to block turf athletic field

Calverton resident Greg Fischer, who lost his bid for a seat on the Riverhead Board of Education this spring, is threatening to sue the Riverhead Central School District in order to halt the installation of a turf field with a rubber flake base.

Fischer yesterday sent the superintendent of schools an email he said was his “1st Notice of Claim” demanding the school abandon its plan to use a rubber base for the new turf field.

District voters in May approved borrowing of $1.2 million to construct an artificial turf field on the district’s main campus. The specifications for the turf field — the district’s first — called for a crumb rubber base.

District officials have already indicated they are not inclined to change the specifications now, with school board president Sue Koukounas even stating the district could not make that change because those specs were what voters approved.

Koukounas made the statement in response to questioning by Sal Mastropaolo of Calverton at the July 5 board meeting. That evening, Mastropaolo asked the board to reconsider use of a rubber base, citing studies that concluded the material was dangerous to the health of athletes. Koukounas told him the material is approved by the State Education Department whose own studies were “inconclusive” as to the material’s potential toxicity.

Fischer argues that the school board is not bound to the rubber-base specs.

“The bond issue was for a turf field at a given amount,” Fischer wrote in his email addressed to Carney and other district officials, “it was certainly NOT for any field that might possibly be unhealthy or injurious to children.”

“The representation at a prior school board meeting (by board president Susan Koukounas, particularly) that this type of turf field (rubber flake) was specified by the bond issue was untrue and thus a fraud upon the voters, taxpayers, parents, teachers, coaches, and children of Riverhead and a fraudulent entry into the record of school board proceedings,” Fischer wrote.

Fischer maintains that there’s “significant evidence” that used-recycled rubber-base fields are “injurious and unhealthy.”

Some studies have found that the chemical components of crumb rubber could vaporize or leach into water the crumbs come into contact with under relatively mild and normal conditions. The Environmental Protection Agency, Centers for Disease Control, Prevention/Agency for Toxic Substances and Disease Registry and Consumer Product Safety Commissions launched a multi-agency action plan this February to “study key environmental human health questions” related to using tire crumbs on playing fields and playgrounds. They plan to release a draft of their findings by “late 2016.”

Fischer accuses the district of failing to conduct its own due diligence examination on the safety of the rubber-base artificial turf fields. The district will not be shielded from liability for installing such a field just because it relied on “any industry lobby or particular government agency” including the State Education Department, Fischer said.

Fischer said there are natural material bases for artificial turf fields that are both less costly and safer and urged the district to investigate them.

Southold School District chose such an option last year prior to asking voters to approve a $7.8 million capital improvement bond, which they approved. The synthetic turf field planned in Southold is using an organic matter base, made of coconut shells instead of rubber, because of uncertainty about health concerns due to the potential for toxic build-up under the turf surface, Southold School Superintendent David Gamberg said in a December interview.

Fischer, who is now a candidate for election to the New York State Senate seat held by Ken LaValle, who was first elected in 1976 to represent the First District senate seat encompassing the entire East End and most of Brookhaven Town. Fischer mounted a failed challenge to LaValle in 2010. He also ran on a third-party line for Town Supervisor in 2011 and has run twice for school board.

He is no stranger to the legal process either. Fischer has filed numerous notices of claim with government entities and brought lawsuits challenging government action on issues as diverse as the governance of the Long Island Power Authority and the eligibility of Texas Senator Ted Cruz to run for the office of President of the United States.

Riverhead School Superintendent Nancy Carney did not respond to a request for comment prior to presstime.

A notice of claim, if valid, could potentially delay work on the installation of the synthetic turf field — as could an actual lawsuit.

However New York State law sets forth requirements for a valid notice of claim, including a requirement that it must be a sworn statement and that it must be delivered in person or by registered or certified mail and must be served on the N.Y. secretary of state as well as the municipality (in this case the school district.) It must also be filed within 90 days of the claim first arising.

But it’s also not clear that a notice of claim is even necessary in a case seeking to prevent a government entity from taking some type of action.

State law requires an aggrieved party to file the prescribed notice in tort cases, which involve injury to person or property and seek to recover damages to compensate for such an injury. In those cases, a plaintiff cannot even bring an action without first filing a notice of claim in accordance with the state statute. So Fischer could seek his remedy directly in court, as long as he, as plaintiff, brings suit within the time limits that apply to the type of suit he’d be bringing, known as a statute of limitations.