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Decision No. 14,185

Application of DANIEL KARPEN for the removal from office of Raymond Walters, as Superintendent of Schools; Austin T. Gavin, as District Clerk; George Weiss, as Treasurer; Linda Scarpinella, as Deputy Treasurer; and Vivian Cahn, Peter Fetterolf, Jean Forchelli, Suzanne Kleinknecht and Morton Tenenbaum as members of the Board of Education of the Cold Spring Harbor Central School District.

Decision No. 14,185

(July 30, 1999)

Ehrlich, Frazer & Feldman, attorneys for respondents, Jerome H. Ehrlich, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the Cold Spring Harbor Central School District, seeks the removal from office of various school district officials who allegedly failed to take and file their oaths of office in compliance with the Public Officers Law. The application must be denied.

Petitioner claims that Raymond A. Walters, the Superintendent of Schools, should be removed from office because he did not take and file an oath of office; that board members Vivian Cahn, Peter Fetterolf, Jean Forchelli, Suzanne Kleinknecht, Morton Tenenbaum, Treasurer George Weiss and Deputy Treasurer Linda Scarpinella, should be removed from office because their oaths were administered by Superintendent Walters, who is not qualified to perform that function; and that District Clerk Austin T. Gavin should be removed from office because he failed to inform the Cold Spring Harbor School Board that each of these individuals was serving as school officers without having filed a proper oath in accordance with the Public Officers Law.

Respondents argue that they should not be removed from office because they are not guilty of any willful violation of law or neglect of duty which would warrant removal under Education Law "306. They further contend that if their oath taking and filing did not technically comply with law, it should be excused because respondents immediately corrected all alleged irregularities.

First, as petitioner concedes in his Verified Reply, petitioner's claims with respect to respondent Scarpinella are moot, because Ms. Scarpinella is no longer employed by the district as Deputy Treasurer. The Commissioner will only decide matters that are in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent facts have laid to rest (Matter of Roberts, 38 Ed Dept Rep 68, Decision No. 13,984). Therefore, the claims concerning Ms. Scarpinella are dismissed.

Petitioner's claims with respect to respondents Gavin and Weiss must also be dismissed as moot. On May 12, 1998, soon after the commencement of this proceeding, the board of education voted unanimously to reappoint Mr. Gavin as District Clerk, and Mr. Weiss as Treasurer. Both appointees immediately took oaths before a notary public, and filed those oaths with the office of the district clerk, in compliance with Public Officers Law "10. Assuming, arguendo, that Messrs. Gavin and Weiss had previously vacated their positions by failure to comply with the Public Officers Law, as petitioner contends, their subsequent reappointments by the board, followed by the timely and proper filing of their oaths of office, render moot petitioner's claims as to them. Education Law "2114.

I must similarly dismiss petitioner's claims with respect to respondents Fetterolf and Kleinknecht. The law provides that school board members must take and file oaths of office with the district clerk (Public Officers Law "10). The failure to properly take and file an oath of office within 30 days after the commencement of the term of office to which the member is elected causes the office to become vacant (Public Officers Law "30[1][h]). The oath is only proper if it is administered by an individual qualified by law to do so, such as the presiding officer or clerk of a body of officers or a notary public (Public Officers Law "10). Fetterolf and Kleinknecht were reelected to the board of education to three-year terms in 1997, expiring on June 30, 2000. The record demonstrates that they did, indeed, fail to properly execute and file an oath of office in a timely fashion subsequent to their reelection. Apparently, when respondents Fetterolf and Kleinknecht were reelected, their oaths were administered by Superintendent Walters, who respondents concede was not qualified to administer oaths.

Had this remained the status quo, I would be compelled to grant petitioner's relief and declare these positions vacant pursuant to Public Officers Law "30(1)(h). However, on June 30, 1999, subsequent to the filing of this appeal, respondents Fetterolf and Kleinknecht resigned their offices, effective immediately. ("Resignation" was superfluous, however, as their positions were already vacant by operation of law for failure to comply with the Public Officers Law.) Then, at a July 6, 1999 reorganization meeting of the board, the remaining duly elected board members voted unanimously to appoint Fetterolf and Kleinknecht to fill the two vacancies created by their resignations (See, Education Law ""1709[17]; 1804[1]). Immediately thereafter, Fetterolf and Kleinknecht took and filed their oaths of office before a notary public, in compliance with the Public Officers Law. I find that the subsequent actions of respondents and the board render moot petitioner's claims as to Fetterolf and Kleinknecht.

This result is not affected by Education Law "2103(3), upon which petitioner incorrectly relies to argue that respondents were ineligible when appointed by the board by virtue of their removal from office less than one year earlier. Section 2103(3) renders ineligible for appointment persons "removed" from a school district office, for one year from the date of such "removal". However, respondents Gavin, Weiss, Fetterolf and Kleinknecht were not "removed" from office. Rather, their positions became vacant by operation of law, upon their failure to comply with the Public Officers Law (SeeMatter of Decker, 39 St Dept Rep 199 [1930]). Because the statute by its terms provides for an automatic vacatur which is triggered by the mere failure to comply with the statutory filing requirements, no action to remove them was necessary. "Vacatur" is thus clearly distinct from "removal", which requires some affirmative act to be effective. Since "2103(3) renders ineligible only those persons actually removed from office, respondents were not ineligible for reappointment by virtue of "2103(3). Their appointment was therefore valid and petitioner's claims with respect to Gavin, Weiss, Fetterolf and Kleinknecht are dismissed.

Nor can I grant the relief petitioner requests with respect to respondent board members Cahn, Forchelli or Tenenbaum. Each ran unopposed and was reelected to the board in May 1999, subsequent to the filing of this appeal. At a reorganization meeting of the board on July 6, 1999, respondents Cahn, Forchelli and Tenenbaum properly took and filed their oaths of office before a notary public, in compliance with Public Officers Law "10. Therefore, the claims regarding these respondents must also be dismissed as moot (See, Matter of Roberts, supra).

Finally, I find no merit to petitioner's contention that respondent Superintendent Walters has vacated his office because of his alleged failure to comply with the Public Officers Law. Public Officers Law "10 requires every "officer" to take and file an oath of office. Whether or not Superintendent Walters was obligated to take an oath depends upon whether he is an "officer" as that term is used in the Public Officers Law. I find that there is no clear answer to that question, and, absent unambiguous direction from the Legislature, I decline to declare Superintendent Walters' position vacant.

My analysis of this issue begins with Public Officers Law "2, which defines a "local officer" as, among other things, "every officer of a political subdivision of the state." A school district is certainly a political subdivision of the state. However, this definition alone does not precisely describe which school district personnel constitute an "officer" who must take and file an oath of office. Authorities construing the Public Officers Law have held that not all persons who serve the public are necessarily public "officers". A determination of whether an appointee is a public officer, as opposed to a public employee, requires a review of the nature of the position, the powers and duties of the job, the tenure and the occupant (Heller v. Carlson, 42 A.D. 2d 829 [1973]). Generally, a public "officer" is someone whose position is created by statute, whose powers and duties are prescribed by statute, and who exercises a high degree of initiative and independent judgment (Matter of County of Suffolk v. State of New York, 138 A.D. 2d 815, 816 [3d Dept. 1988], affd. 73 N.Y. 2d 838 [1988]).

Applying these measures to the position of school superintendent leads to no clear conclusion. The position of superintendent is provided for in statute and is designated as the "chief executive officer" of the district. The superintendent's duties are also prescribed by statute to some extent. On the other hand, while the superintendent must exercise some initiative and independent judgment in the day-to-day operations of the district, he is not wholly independent. Rather, he reports to the school board, and is subject to its direction. He does not serve for a definite term established by statute, but instead serves at the pleasure of the board pursuant to a contract. Moreover, the Education Law specifically fails to identify "superintendent" as among those positions designated as public "officers". Finally, my review indicates that the school community has not historically considered superintendents to be officers, and thus they have not customarily taken and filed oaths of office.

The only case to address this issue is not squarely on point. In Petrella v. Siegel, 136 A.D. 2d 81 (2d Dept. 1988), the Court found that the community superintendent of Community School District No. 28 in New York City was, indeed, a public officer under law. Critical to the Court's decision, however, was the fact that "a community superintendent is vested with certain powers which he may exercise independently of the community school board, and without the board's approval." Id. The particular powers cited by the Court gave community school superintendents a degree of authority and discretion greater than superintendents of central school districts. Thus, Petrella is instructive, but not controlling.

Given the absence of clear legislative guidance on this issue, and widespread practice across the state which has resulted in superintendents neither taking nor filing oaths of office, I decline to find that Superintendent Walters was required to file an oath of office, and that his failure renders his position vacant. However, it is sound public policy to treat school superintendents as public officers with respect to oaths of office. I am persuaded of this in part because other school personnel in positions of responsibility are so treated. For example, school board members take and file an oath of office with the district clerk (Public Officers Law "10). So do the school district clerk and treasurer. Id. A district superintendent must take an oath under law. Education Law "2206. Moreover, all teachers are required to take oaths. Education Law "3002. There is no meaningful distinction between school superintendents and these other personnel, and thus no logical reason why school superintendents should not also take and file a timely oath subsequent to each appointment. I will direct my Office of Counsel to so advise school superintendents across the State.

Finally, had the law required Superintendent Walters to take and file an oath of office, his belated taking of the oath at the July 6 reorganization meeting would not have cured his prior failure in the absence of the board's reappointment of Walters prior to taking the oath.

THE APPLICATION IS DENIED.

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