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Decision No. 13,534

Appeal of HENRIETTA F. CARBONARO from action of the Board of Education of the Valley Stream Union Free School District No. 24 and Henry Hoffman as a member and the Board of Education of the Valley Stream Central High School District, regarding appointment as a board of education member.

Decision No. 13,534

(January 22, 1996)

Ehrlich, Frazer & Feldman, Esqs., attorneys for petitioner, James H. Pyun, Esq., of counsel

George Shebitz & Associates, P.C., attorneys for respondents Hoffman and Valley Stream Union Free School District No. 24, Nahal Motamed, Esq., of counsel

Sidney Romash, Esq., attorney for respondent Valley Stream Central High School District

MILLS, Commissioner.--Petitioner challenges the appointment of respondent Henry Hoffman to the Board of Education of the Valley Stream Central High School District ("CHSD"). The appeal must be sustained.

Respondent Valley Stream Union Free School District No. 24 ("VS24") is a K-6 union free school district. It is one of three elementary districts which comprise the CHSD. Petitioner has been a member of VS24 since 1974 and VS24 first appointed her to be a member of the CHSD in 1980.

On October 15, 1992, VS24 revised its policy for the appointment of members to CHSD. The revised policy states in part:

Three (3) members of the Board of Education of District Twenty-four shall be appointed annually by the School Board, as its legal representative, to the Board of Education of Valley Stream Central High School District.... Appointment of such members shall be held at the Annual Reorganization Meeting and thereafter as such vacancies occur...

On July 1, 1993, petitioner commenced a new three-year term as a member of the board of education of VS24. On July 1, 1993 at the VS24 reorganization meeting, respondent board appointed petitioner to the CHSD board. The motion appointing petitioner states in part:

...to appoint three members of the Board of Education of Valley Stream Union Free School District Twenty-Four to the Board of Education of Valley Stream Central High School District to serve as Trustees on the High School Board of Education for periods concurrent with their respective terms of office as Trustees of District Twenty-Four.

At the VS24 reorganization meeting of July 5, 1994, respondent board again appointed petitioner to the CHSD. The motion appointing petitioner states in part:

...to appoint three members of the Board of Education of Valley Stream Union Free School District Twenty-Four to the Board of Education of Valley Stream Central High School District to serve as Trustees on the High School Board of Education for annual periods concurrent with their respective terms of office as Trustees of District Twenty-Four. (emphasis added)

On July 13, 1995, three trustees other than petitioner were appointed to CHSD. This appeal followed.

Petitioner contends that her appointment to CHSD on July 1, 1993 expires on June 30, 1996. Therefore, she asserts that there was no vacancy on the board of CHSD for respondent Hoffman to fill. Respondent contends that petitioner's appointment in 1993 was an annual appointment because the VS24 policy regarding appointments to CHSD had been revised in 1992 to allow only annual appointments. Respondents further assert that petitioner had to be aware of this change, not only because she was a board member of VS24 when the policy was revised, but because her appointment to CHSD in 1994 specifically states it was annual.

Education Law '1901 governs the appointment of board members to central high school boards of education and states in part:

The persons so designated shall be members of the board of education of the central high school district during their terms of office as members of the board of education or as trustees of the districts respectively represented by them....

Petitioner and respondents both assert that this language supports their adverse contentions. I do not agree with petitioner and find the plain meaning of the term "during" does not mean a member of a central high school board must be a member of that central high school board for as long as the individual is a member of the component board. Instead, I find the plain meaning of the statute to be that a member of a central high school board must concurrently be a member of a component board, at least for the time he or she is a member of the central high school board. Accordingly, I do not find that as a matter of law respondent CHSD was required to retain petitioner as a board member during her tenure as a board member of VS24.

However, based on the facts of this case, I find that petitioner's appointment to the CHSD board continues until June 30, 1996. The record reflects that in 1993, respondent board appointed petitioner to the board of the CHSD. The motion appointing her stated that her term on the CHSD was to run concurrently with her term on the VS24 board. Her term on the VS24 board continues until June 30, 1996. Accordingly, her appointment on the board of CHSD continues until June 30, 1996. Although respondents' policy states that appointments to the CHSD are to be annual, petitioner's appointment in 1993 to the CHSD did not state that it was an annual appointment. Instead, respondent apparently ignored its policy and expressly appointed petitioner to a term concurrent with her new three-year term on VS24. Because of the longer appointment, respondent created in petitioner a reasonable expectation of continued membership on the CHSD board.

Petitioner's reappointment in July 1994 was unnecessary in view of respondent board's 1993 extended appointment. Moreover, the 1994 appointment does not void the 1993 appointment and creates a new one-year appointment. Therefore, I find no basis to conclude that the 1993 appointment was superseded by the 1994 appointment. Accordingly, I find petitioner still has a seat on respondent CHSD board of education and the appointment of Mr. Hoffman to such board is null and void.

In view of the foregoing, I will not address the parties' remaining allegations.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that petitioner immediately take her seat as a board member of respondent CHSD and that respondent Hoffman's appointment be declared a nullity. This does not, however, invalidate any determinations made by respondent CHSD while Mr. Hoffman was seated as a member.

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