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Decision No. 12,936

Application of KARL AARSETH against the Board of Education of the Malverne Union Free School District for the removal of a member of the Board of Education.

Decision No. 12,936

May 27, 1993

Ehrlich, Frazer & Feldman, Esqs., attorney for respondent, Florence T. Frazer, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks an order removing Mrs. Marguerite O'Connor as a trustee of the Malverne Union Free School District ("respondent") due to her appointment to the position of district clerk. The application must be denied.

On July 14, 1992, the Board voted unanimously to appoint trustee, Marguerite O'Connor as district clerk for the 1992-93 school year. Petitioner commenced this appeal on February 9, 1993. Petitioner alleges that the appointment of a trustee to the position of district clerk represents a conflict of interest specifically prohibited by Education Law '2103. He further contends that voting on her own appointment also constitutes a conflict of interest for Ms. O'Connor. Petitioner seeks Ms. O'Connor's removal as a trustee of respondent board.

Respondent asserts that this appeal should be dismissed as untimely. Additionally, respondent asserts that appointing a trustee to the position of district clerk is explicitly authorized by law, and that the law does not prohibit the trustee who is appointed from participating in the vote.

Regarding timeliness, an appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown that is alleged in the petition (8 NYCRR 275.16). The vote appointing Ms. O'Connor to the position of district clerk occurred on July 14, 1992, and the appeal was commenced on February 9, 1993, more than 30 days later. Although the regulation requires that petitioner demonstrate in the petition good cause for delay, petitioner failed to provide any explanation for his delay in the petition, instead introducing his excuse in the reply. Since the petition is silent on the matter of the delay, the appeal must be dismissed as untimely (Appeal of the Board of Education of the Poughkeepsie City School District, 32 Ed Dept Rep 315). Furthermore, petitioner's claim of ignorance of the appeal process is not a sufficient excuse for his delay in commencing a timely appeal, except in unusual circumstances (Appeal of Savastano, 32 Ed Dept Rep 326; Appeal of Saeger, 31 id. 528). Even if petitioner had presented his excuse in the petition instead of the reply, I find no unusual circumstances for excusing his delay.

Although not raised as a defense, it must be noted that petitioner fails to name Ms. O'Connor as a party to this proceeding even though he seeks her removal. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a party (Appeal of Basile, 32 Ed Dept Rep 330; Appeal of Osterman, 30 id. 290; Appeal of Como, 30 id. 214; Appeal of Fitzpatrick, 30 id. 124; Appeal of Giglia, et al, 27 id. 453). Since a ruling in petitioner's favor would adversely affect Ms. O'Connor, the petition must be dismissed for non-joinder of a necessary party.

Although this application is dismissed on procedural grounds, I am also constrained to dismiss it on the merits. Petitioner's interpretation of Education Law '2103 as prohibiting a trustee from also holding the position of district clerk is in error. Education Law '2103 states:

No district superintendent or supervisor is eligible to the office of trustee or member of a board of education, and no trustee or member of a board of education can hold the office of district clerk, collector, treasurer or librarian, except as otherwise provided by section twenty-one hundred thirty. (emphasis added)

Education Law '2130 provides:

1. In every union free school district the board of education shall have the power to appoint one of their number, or some other individual as clerk of the board of education of such district.

2. Such clerk shall also act as clerk of said district...(emphasis added).

It is clear both from the statutory language and a prior Commissioner's decision that the Education Law authorizes a trustee to hold simultaneously the position of district clerk (Matter of Hurtgam, 22 Ed Dept Rep 219). The appointment by respondent of a trustee to this position was, therefore, lawful.

Regarding petitioner's contention that the trustee appointed to the position should not have voted for herself, there is no provision in the Education Law or the General Municipal Law that would preclude a board member from participating in a vote to appoint herself as district clerk (Matter of Hurtgam, supra). Therefore, I find that the trustee's vote for herself was also lawful.