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Decision No. 13,059

Appeal of WILLIAM H. COOK from action of the Board of Education of the Niagara Falls City School District regarding the appointment of a school district attorney and an assistant school district attorney.

Decision No. 13,059

(December 3, 1993)

Gold and Gold, Esqs., attorneys for respondent, Michael Alan Gold, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's appointment of former board members to the positions of school district attorney and assistant school district attorney. The appeal must be dismissed.

On July 1, 1993, respondent board met and accepted the resignation of its school district attorney. The assistant school district attorney and former board member, Michael Alan Gold, was then appointed school district attorney. Board member William D. Berard III subsequently resigned to "pursue another professional endeavor" and was appointed assistant school district attorney at the same meeting. This appeal ensued. Petitioner's request for interim relief pending a final determination on the merits of the appeal was denied on September 15, 1993.

Petitioner alleges that the appointments are improper and seeks an order voiding the contracts between respondent and Mr. Gold and Mr. Berard. He also seeks an order directing respondent to develop job specifications for the positions of school district attorney and assistant school district attorney and an order directing respondent to advertise for those positions and comply with its directives on affirmative action. Respondent contends that the appeal is untimely, fails to state a cause of action and fails to join necessary parties.

I will first address the procedural issues raised by respondent. Although petitioner has identified Mr. Gold and Mr. Berard as the individuals respondent hired to fill the positions of school district attorney and assistant school district attorney, petitioner did not join them as parties to this proceeding. In appeals before the Commissioner of Education, one whose rights would be adversely affected by a determination favorable to the petitioner must be joined as a necessary party (Appeal of Kalinowski, 32 Ed Dept Rep 476; Appeal of Healy, 29 id. 391; Appeal of Zimmerman, 28 id. 382). Since Mr. Gold and Mr. Berard's employment would be adversely affected by a decision in favor of the petitioner and petitioner has failed to join them as necessary parties, the appeal must be dismissed.

The appeal must also be dismissed as untimely. Petitioner appeals employment determinations made on July 1, 1993. This appeal was not filed until August 25, 1993, more than 30 days from the making of the decision or act complained of (8 NYCRR 275.16). Petitioner admits that the appeal is untimely but asks the Commissioner to overlook that fact since the official minutes of respondent board's meeting were not available until the August 19th board meeting. I do not find that argument persuasive. Petitioner could have filed his petition within the 30 day time limit imposed by Commissioner's regulations and amended his petition, if necessary, to include the official minutes at a later date. I must, therefore, dismiss the appeal as untimely.

The appeal must also be dismissed on the merits. Petitioner contends that respondent's appointment of Mr. Gold and Mr. Berard as school district attorney and assistant school district attorney, respectively, is contrary to the rule of law established in Wood v. Town of Whitehall, 120 Misc. 124, aff'd 206 App. Div. 786, where the Court held it was illegal for a town board to appoint one of its members to serve as town justice. However, the Court did not prohibit the kind of arrangement made here, i.e., the appointment of a former member to a position (Matter of Valentin v. Simm, 98 Misc. 2d 5, 413 NYS2d 266; 1987 Op. Atty Gen 4). As I held in Appeal of Boeddener, et al., 28 Ed Dept Rep 578, the law does not prohibit the subsequent employment by a school district of a former school board member.

While the appointment of Mr. Gold and Mr. Berard is not improper, I agree with petitioner that efforts should be made by respondent to seek qualified candidates for employment through competitive processes that comply with respondent's own affirmative action policy. As I stated in Boeddener, supra, public officials must be cognizant and sensitive to the appearance of impropriety and the effect it has on public confidence. In this case, respondent's actions, while not illegal, may give the appearance of impropriety and lead to the impression that former board members have used their circumstances to gain paid positions of employment. I urge respondent to be sensitive in the future to the appearance of impropriety in its appointments.

THE APPEAL IS DISMISSED.

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