SOBOL, Commissioner.--This is an appeal commenced by the Commissioner of Education pursuant to Education Law "310 to determine if respondent Turchiarelli's office as a member of the Board of Education of the City School District of the City of Buffalo has become vacant for incapacity to serve, pursuant to Education Law "2112(1). The appeal must be sustained.

Respondent was the subject of a recent appeal to the Commissioner of Education in which certain residents of the Buffalo City School District sought an order directing the Board of Education of the City of Buffalo to declare vacant the position on the board held by Mr. Turchiarelli. The basis of the appeal was an allegation that respondent had neglected to attend and three successive meetings of the board, of which he was duly notified, without rendering a valid excuse for his absences to the other members of the board. That appeal was dismissed because the record indicated that respondent's absences apparently resulted from an incapacitating back injury and that respondent had notified the board of his inability to attend meetings and had provided seemingly valid medical documentation of his condition (Appeal of Rowe, et al., 31 Ed Dept Rep 280).

The record in that appeal also indicated that respondent's medical condition had prevented him from performing his duties as a member of the board since January 1991 and that he was uncertain when he would be able to return to his duties. In response to respondent's apparent inability to act, the Commissioner of Education issued an order on February 5, 1992 directing respondent to show cause why respondent's office should not be declared vacant for incapacity to serve pursuant to Education Law ""310 and 2112(1). That order also directed respondent to show cause why respondent should not be removed from his office for neglect of duty pursuant to Education Law "306.

By order dated February 20, 1992, the Board of Education of the City School District of the City of Buffalo was directed to submit all minutes of the board and all correspondence received from respondent since December 1, 1990. On March 3, 1992, respondent submitted an answer. By letter dated March 11, 1992, respondent was notified that oral argument on the issue of whether his office should be declared vacant for incapacity to serve pursuant to Education Law ""310 and 2112(1) would be held on April 7, 1992. A separate evidentiary hearing on the issue of whether respondent should be removed from office for neglect of duty pursuant to Education Law "306 was scheduled for April 30, 1992.

In his answer, respondent argues that there is no indication that he will not be able to perform his duties in the future and that vacating his office because of his physical condition would constitute discrimination due to physical handicap. Education Law "2112(1) provides:

The minutes of the Buffalo City Board show that respondent has not attended a meeting of that body since January 9, 1991. In response to inquiries from the board about his absences, respondent wrote to fellow board members on March 18, 1991. Respondent stated:

In a subsequent letter to the president of the board, dated September 11, 1991, respondent stated:

At paragraph 8 of the answer submitted in this proceeding, respondent states that his "absences from board meetings was the result of an incapacitating back injury which presently prevents respondent from sitting, standing or walking for any length of time until his condition is resolved by surgery." (emphasis supplied).

Respondent has also submitted a statement from his physician dated October 21, 1991 which states:

It is therefore apparent that respondent's own statements and materials supplied by him confirm that he is presently incapable of performing his duties as a board member. While respondent has stated that he will notify the board if he shall be able to continue as a board member, more than a year has passed since that statement was made, and respondent has not done so. In light of the fact that respondent has failed to notify the board when he can resume his duties and his term of office is due to expire on June 30, 1992, it is apparent that respondent will not be able to resume his duties in the future. Accordingly, I find that respondent's office has become vacant under Education Law "2112(1) by virtue of his incapacity.

Respondent offers no support for his claim that a declaration that his office is vacant because of incapacity to serve would be unconstitutional discrimination against a physically disabled person. The Americans with Disabilities Act of 1990 (42 USC "12100, etseq.) (the "ADA") prohibits a public entity from excluding a qualified individual with a disability from participation in activities of the public entity, and from discriminating against such qualified individual (42 USC "12202). Discrimination consists of failure to make reasonable accommodation[s] to the known physical limitations of the individual with the disability. Id. In this case, the record is devoid of any evidence that respondent sought to perform his duties but was prevented from doing so by the absence of reasonable accommodations. To the contrary, the record is replete with respondent's unequivocal statements that he could not perform his duties – under any circumstances. Accordingly, respondent has failed to state a claim under the ADA.

In a memorandum of law submitted on respondent's behalf, it is argued that the term "incapacity" as used in Education Law "2112(1) refers to "legal" incapacity, such as declared incompetency or minor status, and does not refer to a physical incapacity. However, the statute itself does not limit the meaning of the term. Consequently, there is no basis to conclude from the plain language of the statute that incapacity to serve is limited to "legal" incapacity and excludes physical incapacity.

In his memorandum of law, respondent argues that he is entitled to a full evidentiary hearing on the issue of whether his office has been vacated. Respondent is mistaken. While respondent is entitled to an evidentiary hearing in a proceeding for his removal from office for neglect of duty (see Education Law "306 and Part 277 of the Regulations of the Commissioner of Education), there is no statutory or constitutional requirement that an evidentiary hearing be held in connection with an appeal such as this which is taken pursuant to Education Law "310 (Matter of O'Brien, et al.v. Commissioner of Education of the State of New York, 4 NY2d 140, 173 NYS2d 265, cert den 361 US 117; Matter of Savage v. Allen, 13 Misc 2d 489, 177 NYS2d 331, aff'd 8 AD2d 650, 185 NYS2d 124; Matter of Flanagan, et al. v. Nyquist, et al., 66 Misc 2d 736, 322 NYS2d 853, aff'd 38 AD2d 645, 327 NYS2d 119 app dis 30 NY2d 581, 30 NYS2d 1031, cert den 406 US 907). The regulations relating to appeals pursuant to Education Law "310 specify that "All evidentiary material shall be presented by affidavit or by exhibits. No testimony is taken and no transcript of oral argument will be made" (8 NYCRR "276.2[d]).

The appeal of the Commissioner of Education was initiated pursuant to Education Law "310. The court quoted the foregoing provision and held in Matter of Forrest v. Ambach, et al., 93 AD2d 965, 966, 463 NYS2d 84, ___, app dis. 60 NY2d 701, 468 NYS2d 1028:

Accordingly, respondent's contention that he is entitled to an evidentiary hearing on this issue is rejected.

Respondent also contends that because this matter has been commenced by the Commissioner of Education, it must not be decided by the Commissioner and must be decided by an independent third party. That contention is also without merit. As noted above, this appeal was instituted pursuant to Education Law "310. That section contemplates that the Commissioner preside over the proceeding:

Accordingly, I conclude that respondent's office as a member of the Board of Education of the City School District of the City of Buffalo is vacant because of respondent's incapacity pursuant to Education Law "2112(1). I note that while my decision in this appeal may appear to rest primarily on a technical interpretation of statute, there is much more at stake in this matter than the correct application of law.

For almost one and one-half years – nearly one-half of the term for which he was elected – Mr. Turchiarelli, by his own admission, has not performed his primary duty – to attend and participate in board meetings. His absence has deprived the voters and the school children of the district of the representation to which they are entitled. As I stated in Appeal of Rowe, id.:

Mr. Turchiarelli's continued failure to perform the functions of his office has left a critical void, the burden of which the students of the district cannot be required to bear.

In light of my finding on this issue, the question of whether respondent should be removed from office pursuant to Education Law "306 because of neglect of duty is moot.

Accordingly, that section of my Order to Show Cause issued on February 5, 1992 is withdrawn.

THE APPEAL IS SUSTAINED, and

IT IS ORDERED that the position of respondent Victor Turchiarelli as a member of the Board of Education of the City School District of the City of Buffalo is declared vacant by incapacity pursuant to Education Law "2112(1).

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