Appeal of OSCAR COHEN from action of the Board of Education of the East Ramapo Central School District regarding a board resolution.

Decision No. 17,075

(April 19, 2017)

New York Civil Liberties Union Foundation, attorneys for petitioner, Mariana Kovel, Sam Thypin-Bermeo, and Arthur Eisenberg, Esqs., of counsel

Constitutional Rights Clinic of Rutgers Law School, attorneys for petitioner, Alexis Karteron, Esq., of counsel

Harris Beach PLLC, attorneys for respondent, Douglas E. Gerhardt, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges a July 26, 2016 resolution of the Board of Education of the East Ramapo Central School District (“respondent”).  The appeal must be dismissed.

On October 19, 2015, Sabrina Charles-Pierre was appointed to a vacant seat on respondent’s board.  The term of this appointment ran until the board’s next annual meeting and election on May 17, 2016.  Ms. Charles-Pierre subsequently ran for election to the board seat which she occupied.  The election was held on May 17, 2016.

Ms. Charles-Pierre attended a May 17, 2016 board meeting where the unofficial election results revealed that she had won the election with 4,943 votes to 56 votes for write-in candidates.  Ms. Charles-Pierre subsequently attended a June 7, 2016 board meeting where the final election results were certified and accepted by the board.  According to the certified and accepted results, Ms. Charles-Pierre received 5,014 votes to 56 votes for write-in candidates.  Her term of office ran through June 30, 2018.

At the board’s reorganizational meeting on July 14, 2016, the district clerk administered the oath of office to Ms. Charles-Pierre.  The oath of office was filed on the same day.  Within a few days of this meeting, respondent determined that, due to “an administrative timing error,” it had administered Ms. Charles-Pierre’s oath of office more than 30 days after she had been elected to her position and, consequently, by operation of law her seat was deemed vacant (see Public Officers Law §30[1][h]).

On July 26, 2016, respondent convened a special meeting where it appointed Ms. Charles-Pierre to the seat it had declared vacant.  The appointment was effective until the board’s next annual meeting and election in May 2017.  This appeal ensued.

Petitioner argues that respondent’s determination that Ms. Charles-Pierre’s position became vacant was arbitrary and capricious.   In this respect, petitioner contends that the 30-day time period for taking and filing the oath of office imposed by Public Officers Law §30(1)(h) did not commence “until Ms. Charles-Pierre receive[d] formal notice of the election results” and that, upon information and belief, Ms. Charles-Pierre never received such notice.  Petitioner further complains that respondent failed to “publicly” provide a reason for its actions with respect to Ms. Charles-Pierre’s board position.  Petitioner seeks an order restoring Ms. Charles-Pierre to her two-year elected term, which runs through June 30, 2018.

Respondent contends that its actions were mandated by, and performed in accordance with, State law.  Respondent admits that it failed to provide Ms. Charles-Pierre with written notice of her election, but asserts that she was present at the May 17, 2016 and June 7, 2016 board meetings “where the election results were announced and confirmed, respectively.”  Nevertheless, respondent “joins” petitioner in his request to reinstate Ms. Charles-Pierre to her elected term.

Public Officers Law §30(1)(h) states, in relevant part, that an incumbent’s office “shall be vacant upon ... [an incumbent’s] refusal or neglect to file his [or her] official oath ... before or within thirty days after the commencement of the term of office for which he [or she] is chosen, if an elective office ....”  Education Law §2108 further states that, while a district clerk is obligated to inform a successful electoral candidate of his or her election in writing, “[t]he presence of any such person at the meeting which elects him [or her] to office, shall be deemed a sufficient notice to him [or her] of his [or her] election.”

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

I take judicial notice of the enactment of Chapter 5 of the Laws of 2017, effective February 1, 2017.  The unconsolidated law had the effect of excusing Ms. Charles-Pierre’s alleged failure to file her official oath within the statutorily prescribed period, provided that she filed her oath of office within 30 calendar days of the effective date of that act.  In an affidavit by respondent’s district clerk, submitted in response to a directive by my Office of Counsel, respondent confirmed that Ms. Charles-Pierre filed her oath of office on February 7, 2017, which is within the 30-day period.  Therefore, respondent’s July 26, 2016 action in declaring petitioner’s position vacant has been effectively annulled and Ms. Charles-Pierre will serve her term of office through June 30, 2018.  Consequently, the appeal is moot.

In light of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE