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Decision No. 12,642

Appeal of BARBARA ROWE, REV. BRUCE McKAY and PHOEBE McKAY from action of the Board of Education of the City School District of the City of Buffalo and Victor J. Turchiarelli, regarding failure to declare a vacancy.

Decision No. 12,642

(January 29, 1992)

Lovallo, Williams, Esqs., attorneys for petitioners, Timothy R. Lovallo, Esq., of counsel

SOBOL, Commissioner.--Petitioners seek an order directing respondent Board of Education of the City School District of the City of Buffalo to declare vacant the position on the board held by respondent Turchiarelli pursuant to Education Law '2553(8). The appeal must be dismissed.

Petitioners allege that because respondent Turchiarelli has missed numerous board meetings, he has vacated his position as a board member pursuant to Education Law '2553(8). Petitioners further allege that respondent board has acted arbitrarily by failing to declare vacant Mr. Turchiarelli's position on the board. Neither the board nor Mr. Turchiarelli has filed an answer contesting petitioners' allegations. Rather, in a December 19, 1991 letter to my Office of Counsel, counsel to the board advised that the board would take "no position" on the petition. Accordingly, the facts alleged in the petition will be deemed true, pursuant to 8 NYCRR 275.11 (Appeal of Tarolli, 25 Ed Dept Rep 216).

Education Law '2553(8) provides that a board member vacates his position if he "refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse therefore to the other members of such board of education." The petition alleges that respondent Turchiarelli has missed at least three successive board meetings during the past year. However, despite the board's declaration of neutrality in this matter, it has submitted for my review documentation which in fact supports Mr. Turchiarelli. These records indicate that Mr. Turchiarelli's absences resulted from an incapacitating back injury. Both the board's submission and the petition show that Mr. Turchiarelli notified the board of his inability to attend meetings and provided medical documentation of his condition. Because personal illness is a valid excuse under the law for failure to attend board meetings (Matter of Schmidt, 68 St. Dept Rep 63), I am constrained to find that Mr. Turchiarelli has not vacated his position under Education Law '2553(8).

Nevertheless, I am distressed by respondents' apparent disregard of the negative effect Mr. Turchiarelli's absenteeism has on the students of the district. A board of education is entrusted with the important task of securing the best possible education for its students. It is given broad powers under the law to facilitate the performance of this duty (See Education Law '2554). These powers are exercised at regular and special board meetings, at which the participation of individual board members is critical. Mr. Turchiarelli's frequent absences have without question impaired the ability of the school board to function effectively. Apparently, however, the board accepts at face value Mr. Turchiarelli's excuse, and his assertion that he is uncertain when, if ever, he will be able to perform his duties. Mr. Turchiarelli, for his part, feels no compunction to reevaluate his status on the board. In the meanwhile, the students of the Buffalo City School District continue to suffer.

Under such circumstances, I urge Mr. Turchiarelli to consider whether his resignation from the board would be in the best interests of the students, parents and citizens of the Buffalo City School District. As noted in Matter of Thomas, et al., 10 Ed Dept Rep 105, 106:

. . . frequent absences of members from meetings of the board are detrimental to the orderly administration of the school district. If [a board member] is for any reason unable to devote sufficient time to the performance of his functions as a board member, he should resign from his position.

Finally, I am directing State Education Department staff to investigate the extent to which Mr. Turchiarelli's absences have impaired the board's ability to carry out its responsibilities. Once staff has completed its investigation, I will determine whether or not further action against respondents is appropriate.

THE APPEAL IS DISMISSED.

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