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Decision No. 13,015

Appeal of GERALDINE VIVLEMORE from action of the Board of Education of the City School District of the City of Oswego regarding the lease of a building.

Decision No. 13,015

(September 22, 1993)

Michael J. Stanley, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's decision to lease from the Syracuse Diocese of the Roman Catholic Church (the "Diocese") a portion of a former nonpublic school building. Petitioner seeks an order annulling that decision. The appeal is dismissed.

On April 20, 1993 respondent Board of Education of the City School District of the City of Oswego resolved by a 4 to 3 vote to enter into a lease agreement with the Diocese to rent space in the former Bishop Cunningham High School for an alternative education program for "at-risk" students. One of the board members voting in favor of the lease was Monsignor Francis J. Furfaro, the board president.

Petitioner alleges that the lease must be annulled because adoption of the lease with Monsignor Furfaro's approval violates the conflict of interest provisions of the General Municipal Law. Specifically, petitioner alleges that Monsignor Furfaro acted as mediator between the Diocese and respondent in connection with the lease. Petitioner further contends that because Monsignor Furfaro is the Vicar and a paid employee of the Diocese, his negotiation and approval of the lease violated General Municipal Law '801.

General Municipal Law '801 provides that no municipal officer such as a school board member shall have an interest in any contract with the municipality of which he or she is an officer if such officer, individually or as a member of a board, has the power to negotiate, authorize or approve the contract or payments thereunder. That section, however, also provides that the prohibition contained in General Municipal Law '801 does not apply to a number of situations set forth in General Municipal Law '802.

General Municipal Law '802(1)(b) provides that a contract with an organization that ordinarily would be prohibited by '801 as a conflict of interest because the municipal officer is an employee or officer of the contracting organization is permissible if remuneration of such employment is not directly affected as a result of the contract and the duties of employment do not directly involve the procurement, preparation or performance of any part of the contract. The record indicates that Monsignor Furfaro has been a member of respondent board for 21 years and currently serves as its president. He has served as a priest and the pastor at a local parish for 42 years and retired upon attaining mandatory retirement age. As Vicar for the Diocese, Monsignor Furfaro acts as a liaison for the Diocese in Oswego County for spiritual, but not temporal, matters. The record further indicates that prior to retirement, Monsignor Furfaro was a salaried employee of the Diocese. As a retiree, he receives the same monthly payment from the Diocese as all other retired priests in the Diocese. Finally, respondent and Monsignor Furfaro deny that he personally negotiated the terms of the lease.

Monsignor Furfaro did not negotiate the lease, nor is he an employee of the Diocese. His retirement benefits are not directly affected as a result of the lease and his duties as Vicar do not involve the procurement, preparation or performance of any part of the lease. Moreover, because General Municipal Law '802(1)(b) specifically authorizes contracts such as this, there is no basis for granting petitioner's request that the lease agreement be annulled.

Because this appeal is dismissed on the merits, it is not necessary to review the numerous procedural issues raised by respondent.

THE APPEAL IS DISMISSED.

END OF FILE