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Decision No. 14,685

Application of LYNN and THOMAS WASHOCK for removal of James F. Bulmer and Christopher Daus as members of the Board of Education of the City School District of the City of Watervliet.

Decision No. 14,685

(February 13, 2002)

Tobin & Dempf, Esqs., attorneys for petitioners, Kevin A. Luibrand, Esq., of counsel

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondents James F. Bulmer and Christopher Daus, Kristine Amodeo Lanchantin and Kathy Ann Wolverton, Esqs., of counsel

Hicks & Bailly, Esqs., attorneys for respondent Board of Education of the City School District of the City of Watervliet, Stephen F. Bailly, Esq., of counsel

MILLS, Commissioner.--Petitioners, residents and taxpayers of the City School District of the City of Watervliet, seek the removal of James F. Bulmer and Christopher Daus as members of the board of education on the ground that they are ineligible to serve pursuant to Education Law "2502(7). The appeal must be dismissed.

Respondents Bulmer and Daus are both employees of the City of Watervliet. Mr. Bulmer has been a member of the board of education for more than 11 years, while Mr. Daus was first elected to the board on May 15, 2001. Petitioners claim that their employment by the City of Watervliet makes them ineligible to hold the office of member of the board of education because Education Law "2502(7) provides, in pertinent part, "that no person shall hold at the same time the office of member of the board of education and any city office other than as a policeman or fireman . . .".

Petitioners claim that Mr. Bulmer holds the position of Director of the City of Watervliet Water Department. They further contend that Mr. Daus holds the position of Director of the Department of Parks and Recreation for the City of Watervliet. Petitioners allege that these offices have caused respondents Bulmer and Daus to be invested with some "sovereign functions of the government to be executed by [them] for the benefit of the public" in the City of Watervliet, citing Ferraro v. City School District of the City of Schenectady (69 Misc. 2nd 800).

Respondents Bulmer and Daus have each executed affidavits disputing petitioners' contentions and explaining the precise nature of their employment. They also have submitted the affidavit of Paul S. Murphy, General Manager of the City of Watervliet, who has served in that position for 11 years and has served in other positions in city administration for over 30 years.

Mr. Murphy explains that in 1998 the City of Watervliet added three "working supervisor" positions, assigned to the Water Department, the Parks and Recreation Department, and the Highway Department. These positions were not provided for in the city's charter, and were established as non-competitive class positions in the classified service under Civil Service Law "42. In 1998, Mr. Bulmer was appointed to the working supervisor position in the Water Department, and Mr. Daus was appointed to the working supervisor position in the Department of Parks and Recreation. Mr. Murphy further explains that, as working supervisors, both Mr. Bulmer and Mr. Daus report to the city's assistant general manager and to himself, but do not report directly to the Mayor or the city council. As working supervisors, Mr. Bulmer and Mr. Daus have limited supervisory responsibilities with respect to the employees in their departments. However, all staffing decisions with regard to the number of employees per shift, employee evaluations, budget issues, disciplinary issues, granting of leave requests, hiring and separation from service are reserved to Mr. Murphy. All administrative duties performed by Mr. Bulmer and Mr. Daus are reviewed by Mr. Murphy and his assistant general manager, and any determinations they make may be overturned or changed by Mr. Murphy or the assistant general manager.

The question of whether a person holding a city appointive office is a city officer, within the meaning of Education Law "2502(7), or a city employee has been considered by the Attorney General on a number of occasions. In Informal Opinion 90-80, the Attorney General offered this analysis:

A determination of whether an appointee is an officer rather than an employee requires a review of the powers, duties, qualifications and other characteristics of his position. The distinction between a public office and public employment is not always clear (Matter of Dawson v. Knox, 231 App Div 490, 492 [3d Dept, 1931]. The duties of a public official involve some exercise of sovereign power while those of a public employee do not (ibid.; Matter of Haller v. Carlson, 42 AD2d 829 [4th Dept, 1973]). A public officer is a person whose position is created, and 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 AD2d 815, 816 [3d Dept, 1988], affd 73 NY2d 838 [1988]; Matter of Lake v. Binghamton Housing Authority, 130 AD2d 913, 914 [3d Dept, 1987]). Other indicia of a public office are the requirement to take an oath of office or file bonds, appointment for a definite term and receipt of a commission of office or an official seal (Macrum v. Hawkins, 261 NY 193, 200-201 [1933]).

See also, e.g. Informal Opinion 87-6; Informal Opinion 85-35; Formal Opinion 83-F4.

In considering the various factors mentioned, it is most significant that the city charter does not include, in a listing of appointive officers, the titles Director of the City of Watervliet Water Department, Director of the Department of Parks and Recreation for the City of Watervliet, or working supervisor. I note that Chapter 46 of the City Code provides that all powers and duties now or formerly conferred on the Commissioner of Public Works and the Superintendent of Water are transferred to the General Manager, effective 1972. While both Mr. Bulmer and Mr. Daus did file an oath of office, the record makes it clear that all city employees are required to do so.

In view of the limited nature of their duties, in particular their assignment to positions in the classified civil service and membership in the Civil Service Employees Association, I conclude that they are not city officers (see, Appeal of Jackson, 38 Ed Dept Rep 741, Decision No. 14,131; cf. Appeal of Gardiner, 26 id. 249, Decision No. 11,745, where a Director of Parks was found to be a city officer because he exercised independent judgment in planning and carrying out park programs, performed his duties under the direction of the Mayor and common council, had independent authority to grant permission to persons or groups to use city parks and recreation areas after the closing time set forth in the city code, and had independent authority to grant permission for the consumption of alcohol in city parks notwithstanding the general prohibition found in the city code). Particularly persuasive is the statement in the job description for working supervisor: "These positions also serve as strawboss and, as such, actively participate in the job being accomplished."

 

THE APPEAL IS DISMISSED.

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