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Decision No. 13,384

Appeal of CHERYL L. KEYROUZE from action of the Board of Education of the Enlarged City School District of the City of Saratoga Springs regarding vacancies on the board.

Decision No. 13,384

(March 23, 1995)

McCary & Huff, Esqs., attorneys for respondent, Margaret D. Huff, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges respondent's decision not to fill two vacancies on its board. The appeal must be dismissed.

On or about June 1994, a member of respondent board resigned from office, effective June 30, 1994, for personal reasons. That board member's term of office expires on June 30, 1995. At about the same time, another board member resigned due to a "job transfer." The second board member's term of office expires on June 30, 1996. Respondent accepted both resignations at a special meeting on June 30, 1994.

During July 1994, respondent met several times to discuss available options concerning the vacancies. Respondent considered appointing qualified individuals to fill the vacancies until the next annual election, but was unable to reach agreement on any candidates. Respondent also considered scheduling a special election to fill the vacancies. However, due to the primary election scheduled for September 1994 and the general election scheduled for November 1994, the voting equipment necessary to conduct the special election was not available until December 1994. Moreover, the cost of conducting a special election would be approximately $5,000.00. After reviewing its options, respondent voted at a meeting on August 9, 1994 to continue the vacancies until the next annual election. It was contemplated that voters would then elect a trustee to fill the unexpired term for one vacant position and elect a trustee for a new term for the other vacant position.

At several subsequent meetings, petitioner requested respondent to fill the two vacancies. When her requests were not acted on, petitioner commenced this appeal on December 13, 1994.

Before reaching the merits, it is necessary to address a procedural issue. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16; Appeal of Johnson, 33 Ed Dept Rep 183; Appeal of Sima-Eichler, 31 id. 550). Respondent contends that the appeal is untimely because it made its decision to continue the vacancies on August 9, 1994 and this appeal was not commenced until December 13, 1994, more than 30 days later. While petitioner sought reconsideration of respondent's decision, a request for reconsideration does not extend the time in which to bring an appeal (Appeal of Plouffe, 33 Ed Dept Rep 720; Appeal of Sporer, 33 id. 97; Matter of Defense, 24 id. 198). Therefore, the appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits. Petitioner contends that respondent acted improperly when it elected not to appoint individuals to fill the vacant board positions. In an appeal before the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Sivak, 34 Ed Dept Rep 313; Appeal of Lemley, 33 id. 706; Appeal of Singh, 30 id. 284). Education Law '2502(6) provides:

Whenever a vacancy shall occur or exist in the office of member of the board of education, except by reason of expiration of term or of an increase in the number of members of such board, a majority of the remaining members of such board may appoint a qualified person to fill the vacancy.... (emphasis supplied)

The language of the statute indicates that the decision whether to appoint a person to fill a vacancy on the board is clearly within the discretion of the board. Accordingly, there is no basis for granting petitioner's request for an order directing respondent to fill the vacancies.

Petitioner also contends that respondent acted improperly when it decided not to conduct a special election to fill the vacancy. However, Education Law '2113(1) provides:

A vacancy in the office of trustee in any school district may be filled by election within ninety days after it occurs. If not so filled, the district superintendent of the supervisory district within which the schoolhouse or principal schoolhouse of the district is situated may appoint a competent person to fill it. (emphasis supplied)

Again, the language of the pertinent statute shows that the decision whether to conduct a special election to fill a vacancy is within the discretion of the board. Therefore, there is no basis for granting petitioner's request for a special election. I also note that there is no evidence in the record that petitioner has requested the local BOCES superintendent to appoint individuals to fill the vacancies.

I have reviewed petitioner's remaining contentions and find them without merit.