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Decision No. 12,794

Application of BARBARA GMELCH for the removal of James P. Damilatis from his position as a trustee of the Board of Education of the Lindenhurst Union Free School District.

Decision No. 12,794

(September 2, 1992)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Lindenhurst Union Free School District and a former member of its board of education, seeks an order pursuant to Education Law '306 removing respondent from the board of education of that district. The application must be denied.

Respondent's daughter was employed as a teacher of mathematics by the board of education of the Lindenhurst Union Free School District ("district") prior to respondent's election to the board of education. As a result of fiscal circumstances and other needs of the district, the position held by respondent's daughter was abolished effective August 31, 1989, and her services were terminated on that date. Petitioner was a member of the board of education voting in favor of abolishing the position at its meeting on October 4, 1989.

Pursuant to the requirements of Education Law '2510, respondent's daughter was placed on a preferred eligible list in the area of mathematics and, as result of teacher retirements and other circumstances, was reinstated by the board effective September 1, 1991 by majority vote without opposition at its August 7, 1991 meeting. The parties disagree as to whether respondent voted to reinstate his daughter. Respondent was present at the August 7 meeting and the minutes reflect that the vote was unanimous, but respondent claims that he abstained or attempted to abstain from the vote and was not recognized by the chair. Respondent did not formally inform the board at the August 7, 1991 meeting that his daughter was among the teachers being reinstated. At its meeting on October 2, 1991, the minutes of the August 7 meeting were approved without correction or clarification by respondent regarding his intent to abstain on his daughter's reinstatement vote. Petitioner commenced this appeal on October 25, 1991 for an order removing respondent from the board for failing to advise members of the board prior to the vote at the August 7 meeting that his daughter was among those teachers being reinstated from the preferred eligible list and that a two-thirds majority would be required by Education Law '3016.

Respondent requests that this appeal be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition. The petition, served October 25, 1991, contains no explanation for failing to file an application within thirty days of the August 7, 1991 vote. Petitioner asks that her delay be excused because a complete board schedule of the August 7 action was not available to the public until formally approved by a majority of the board on October 2, 1991. However, the action she complains of consisted of public discussion and a vote on the record in the course of a regular meeting of the board. Approval of the minutes at a later meeting did nothing to extend the time by which such actions should be challenged. In any event, petitioner's explanation of her delay is insufficient as it is contained only in her reply and not her petition (Appeal of Appling, 28 Ed Dept Rep 330). Therefore, the appeal is dismissed as untimely.

The application would have been dismissed on the merits as well. Education Law '306 authorizes the Commissioner of Education to remove a trustee or member of a board of education from office for wilful violation or neglect of duty under the law (Education Law '306(1); Matter of Legatos, 23 Ed Dept Rep 10, 11). Petitioner fails to establish wilful misconduct by respondent.

Petitioner contends that respondent wilfully violated Education law '3016 and the board's ethics policy in failing to inform the board at the August 7 meeting that a two-thirds majority vote of the board was required to reinstate his daughter. Section 3016 precludes a board from employing persons related to a board member by blood or marriage, except with the consent of two-thirds of the board. Respondent contends, however, that '3016 is not applicable because the board's August 7 vote was not to employ his daughter, but to fulfill a legal employment obligation to her that predated his membership on the board. Respondent argues that the board was required by Education Law '2510(3) to reinstate his daughter regardless of her relation to him.

Education Law '2510(3) requires the following procedure whenever the district abolishes a position within the school district and thereby excesses an employee:

3. If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled. The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position.

The board may decline to place a tenured teacher on the preferred eligible list only if the record of such person has not been one of faithful, competent service in the office or position he or she has filled. The board's obligation under '2510 to reinstate from the preferred list is mandatory and not discretionary. The mandatory nature of the rights and obligations created by '2510 has been long recognized (see, Appeal of Tucholski, 28 Ed Dept Rep 112; Appeal of Englert, 12 id. 234; Appeal of Mead, 23 id. 101; Appeal of Spataro, 25 id. 206; Baron v Mackreth, 30 AD2d 810, aff'd 26 NY2d 1039; Abrams v Ambach, 43 AD2d 883; Ward v Nyquist, 43 NY2d 57; Dinan v Board of Education, 74 AD2d 922). Consequently, the board's action reinstating respondent's daughter from the preferred eligible list was required by law and not within its discretion to decline. Ordering reinstatement pursuant to '2510(3) differs from discretionary action by the board regarding employment. Section 3016(2) requires consent of two-thirds of the board in exercising discretion to approve or renew the employment contract of a board member's relative or to grant that person tenure (Op. State Comp. 80-34). This requirement has the effect of countering favoritism in the exercise of the board's discretion in its employment power. However, where, as here, the board is mandated by '2510(3) to reinstate a former employee, there is no exercise of discretion, and, consequently, no potential for abuse. Accordingly, I find that the two-thirds vote requirement of '3016(2) does not apply where a preferred eligible list mandates reappointment.

In any event, the board's August 7 vote to reinstate respondent's daughter was without opposition and met the two-thirds requirement of '3016(2). Consequently, petitioner has failed to establish a violation of '3016(2). Because there is no explicit disclosure requirement in '3016 that would have applied to respondent, petitioner has failed to prove that respondent violated the statute, or that, if he did violate the statute, such violation was wilful.

Petitioner also contends that respondent wilfully violated Board Policy ''2301.1 and 5, which require board members to conduct themselves as follows:

1. To observe and enforce state laws and regulations pertaining to education.

5. To refrain from any involvement which might be viewed as a conflict of interest and to refuse to accept anything of value from persons or firms with whom the Board of Education has dealings.

Petitioner has failed to prove that respondent violated State law or regulations. With regard to conduct which might be viewed as a conflict of interest, a board member has no interest as defined in '801 of the General Municipal Law in a contract between the school and his emancipated child, and is permitted by law to vote on the teacher's employment and salary (Op. State Comp. 80-34). Board Policy 2301.5 does not specifically require a public disclosure statement by a board member of the nature alleged by petitioner.

Respondent asks that I issue a certificate of good faith pursuant to Education Law '3811. That statute requires that before a school district may pay for a board member's legal representation in defending himself against charges of misconduct, a court or the Commissioner of Education must certify that the board member appeared to have acted in good faith with respect to the exercise of his powers or the performance of his duties. Petitioner does not dispute that respondent requested representation in a timely manner. Having found no improper conduct by respondent, I hereby certify his apparent good faith regarding the allegations set forth in the petition (Matter of Legatos, 23 Ed Dept Rep 10, 12).