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Decision No. 15,135

 

Appeal of LAWRENCE LOMBARDO from action of the Board of Education of the Lynbrook Union Free School District regarding alleged conflicts of interest.

 

 

(November 10, 2004)

 

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

 

MILLS, Commissioner.--Petitioner objects to the participation by certain members of the Board of Education of the Lynbrook Union Free School District (�respondent�) in matters involving the district�s teacher contracts.  The appeal must be dismissed.

Petitioner alleges that two unnamed board members have spouses who are district teachers and requests that I prohibit board members from negotiating or voting on future teacher contracts.  Petitioner�s request for interim relief was denied on July 12, 2004.

Respondent asserts that the petition does not raise a justiciable controversy because the district is not currently negotiating a contract with its teachers and has not done so since June 2002.  Respondent also asserts that board members whose spouses are employed by the district are legally permitted to participate in contract negotiations and votes.

The appeal must be dismissed on procedural grounds.  The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Jacobson, 37 Ed Dept Rep 75, Decision No. 13,808; Appeal of Rhodes, 21 id. 632, Decision No. 10,815).  Because respondent is not currently negotiating a contract with district teachers, any ruling on this matter would be purely advisory.  The Commissioner of Education does not issue advisory opinions in appeals brought pursuant to Education Law �310 (Appeal of Coleman, et al., 42 Ed Dept Rep 256, Decision No. 14,845; Appeal of Razzano, 39 id. 303, Decision No. 14,244).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR �275.10; Appeal of B.H. and B.H., 43 Ed Dept Rep ___, Decision No. 14,919; Appeal of J.T., 43 id. __, Decision No. 14,917).

General Municipal Law �801 generally prohibits municipal officers and employees from having an interest in contracts with the municipality they serve.  General Municipal Law �800(3) defines an �interest� as �a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves."  That subdivision further provides that �a municipal officer or employee shall be deemed to have an interest in the contract of (a) his spouse, minor children and dependents, except a contract of employment with the municipality which such officer or employee serves . . . " (emphasis added).  Thus, the General Municipal Law explicitly excludes a spouse�s employment contract from coverage under the conflict of interest provision and therefore, does not bar a board member from negotiating or voting on the contract of a spouse (see, Appeal of Grinnell, 37 Ed Dept Rep 504, Decision No. 13,914).  Nor does petitioner cite any other legal authority prohibiting board members from doing so.  Under these circumstances, petitioner has failed to establish any basis for relief.

 

THE APPEAL IS DISMISSED.

END OF FILE