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Decision No. 12,715

Application of LUZ MOLINA from action of the Board of Education of the City School District of the City of New York concerning the removal of Byrum Terry from his position as member of Community School Board 7.

Decision No. 12,715

(June 16, 1992)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Pedro Medina, Jr., Esq. of counsel

SOBOL, Commissioner.--Petitioner seeks the removal of a community school board member because he has a prior criminal record and for neglect of duty. The application must be denied.

On December 17, 1990, petitioner, President of the Parent Teacher Association at P.S. 161 of Community School Board 7 ("the community school board"), sought the removal of board member Byrum Terry. The grounds for petitioner’s application were Mr. Terry’s conviction record and his removal from a tenant’s housing council by the New York City Housing Authority as a result of a grievance. On December 28, 1990, the Chancellor of the Board of Education of the City School District of the City of New York ("the City Board") denied petitioner’s application, concluding that Mr. Terry’s prior felony conviction had no bearing on his eligibility to run for election as a community school board member and that the New York City Housing Authority’s action against him was unrelated to his activities as a member of the board. Petitioner appealed the Chancellor’s decision to the City Board. The City Board dismissed the appeal on April 24, 1991. This application was filed on May 23, 1991.

Petitioner alleges that Mr. Terry neglected his duties as chair of the personnel committee and treasurer of the community school board by failing to fill essential positions in the district. Specifically, petitioner contends that Mr. Terry failed to hire a principal for P.S. 161 or fill nine district office positions and various support positions. Petitioner contends that the board stood to lose $123,966 for the 1990-91 school year due to Mr. Terry’s failure to fill the vacancies. Petitioner also alleges that Mr. Terry’s record of arrests and convictions impact on his ability to serve on the school board. In addition, petitioner contends that although Mr. Terry received a certificate of relief from disabilities under Article 23 of the Corrections Law, it does not lift the prohibition against holding public office. Accordingly, petitioner alleges that Mr. Terry should have been barred from running for office in the 1989 school board election.

Petitioner requests an order removing Mr. Terry as a member of the community school board or directing the Chancellor or President of the City Board to do so. Petitioner also asks that I declare all votes or actions taken by Mr. Terry null and void due to his failure to comply with the Election Law and Article 23 of the Corrections Law.

Respondent contends that the petition should be dismissed for failure to join Mr. Terry as a necessary party. Respondent also alleges that Mr. Terry’s felony conviction is not a basis for his removal since it occurred prior to his term of office.

Before reaching the merits, I will consider whether petitioner’s failure to join Mr. Terry as a party requires dismissal of the petition. In a proceeding to remove a school board member, the individual sought to be removed must be joined as a necessary party and have the opportunity to respond to the charges (Appeal of Como, 30 Ed Dept Rep 214; Appeal of Danison 30 id 16; Appeal ofHealy, 29 id. 391). Petitioner served the petition on the City Board, but failed to serve Mr. Terry individually. Because petitioner seeks Mr. Terry’s removal and failed to join him, the application must be dismissed.

Although the petition must be dismissed, I will address the question of whether the law prohibits convicted felons from serving as school board members. Education Law " 2590-c(4) sets forth the qualifications for membership on a community school board. To serve in that capacity, an individual must be:

a citizen of the state

a resident of New York City at least 90 days prior to the date of election

at least 18 years of age

a registered voter residing in the community district or a parent of a child attending school in the district.

In examining the qualifications for community school board members under Education Law " 2590-c(4), the only qualification affected by a felony conviction would be that of a registered voter. Election Law " 5-106 establishes the qualifications to vote with a specific exception for convicted felons. In particular, paragraph 2 provides:

No person who has been convicted of a felony pursuant to the laws of this state, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the governor, or his maximum sentence of imprisonment has expired, or he has been discharged from parole. [Emphasis added]

Consistent with that provision of the Election Law, once a convicted felon’s maximum term expires, his/her right to vote is fully restored. This conclusion is further supported by Civil Rights Law " 79(1) which states in relevant part that:

…[A] sentence of imprisonment in a state correctional institution for any term less than for life or a sentence of imprisonment in a state correctional institution for an indeterminate term, having a minimum of one day and a maximum of natural life, forfeits all the public offices, and suspends, during the term of the sentence, all the civil rights, and all private trusts, authority, or powers of, or held by, the person sentenced. [Emphasis added]

Mr. Terry also obtained a permanent Certificate of Relief from Disabilities under Corrections Law " 701(1) in 1985. Although a certificate is granted to relieve eligible offenders of prohibitions otherwise imposed by law upon conviction of a crime, the certificate states that it cannot "be construed to apply to the right of such person to retain or be eligible for public office." Petitioner relies on this provision, in part, as a basis for Mr. Terry’s removal. However, consistent with Corrections Law " 701[1], that provision applies only where a law specifically precludes convicted felons from holding a particular office or position. Neither Education Law " 2590-c(4) nor any other section of law specifically bans an individual once convicted of a felony from ever seeking or holding a seat on a community school board. Since the Education Law does not specifically prohibit convicted felons from serving as community school board members, the exception to a certificate of relief from disabilities is inapplicable.

Regarding petitioner’s allegations involving Mr. Terry’s neglect of duty or willful violation of law, petitioner fails to establish that it was Mr. Terry’s responsibility to fill the positions that, she alleges, caused the district to risk a loss of funding. Accordingly, petitioner does not state a claim that would warrant removal.

Whether a convicted felon should be barred from serving as a member of a school board may only be addressed by the State Legislature. In the absence of legislation, however, I am constrained to dismiss the petition, despite the seriousness of petitioner’s charges.