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Decision No. 12,599

Application of JAMES CASAZZA for removal of Mary Devlin from her position as a trustee of the Board of Education of the Washingtonville Central School District.

Decision No. 12,599

(October 31, 1991)

James Casazza, Esq., pro se

Robert N. Isseks, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, a resident and taxpayer in the Washingtonville Central School District, seeks the removal of respondent from office as trustee of the board of education of that district because of an alleged violation of statutes governing conflicts of interest. The application must be denied.

Respondent, a retired teacher formerly employed in the district, was elected to the district's board of education in June 1990, for a second term. As a retiree, respondent receives medical insurance benefits under a collective bargaining agreement between the board and the Washingtonville Teachers Association (the "Association"). Petitioner contends that since respondent in her capacity as trustee must approve the board's collective bargaining agreement with the Association, she is barred from serving as trustee under the conflict of interest provisions of Education Law "2103(4) and General Municipal Law "801.

Education Law "2103(4) provides that "No employee of a board of education may be a member of such a board." By its terms, however, this provision precludes only current board employees from serving on boards of education. Because respondent retired in 1987 and is no longer employed by the board, "2103(4) is inapplicable to her.

Petitioner correctly points out that "801(1)(a) of the General Municipal Law prohibits a municipal officer or employee from having an interest in a municipal contract where he has the power or duty to negotiate, prepare, authorize or approve the contract. The contract central to this dispute is a collective bargaining agreement between the district and the union, under which the board trustee, as a retired teacher, is entitled to receive health benefits. There is no question that the receipt of those health benefits constitutes an "interest" as that term is defined in "800(3). Nor is there any issue as to respondent's authority to negotiate or approve the contract between the Association and the board. Thus, unless some exception applies, respondent would be barred under "801(1)(a) from serving on the board which approves the collective bargaining contract from which she benefits.

Section 802, however, sets forth exceptions to the prohibitions in "801. Section 802(1)(f) specifically exempts from coverage "contract[s] with a membership corporation or other voluntary non-profit corporation or association." The association in this case appears to be a non-profit union of employees, membership in which is completely voluntary. It thus falls within the exception of "802(1)(f). (Stetrine v. County of Suffolk, 66 N.Y.2d 354, 497 NYS2d 329) (the Civil Service Employees Association is a voluntary, non-profit association, covered by "802(1)(f)'s exemption, even though it exists primarily to benefit its membership by enhancing their individual economic positions.)

Accordingly, respondent has no conflict of interest when she is covered by a health insurance plan paid by the district pursuant to a collective bargaining agreement, notwithstanding that as a board trustee she has the power to negotiate and approve the agreement. (SeeComptroller Opinion 86-5, superseding Comptroller Opinion 83-122).