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Decision No. 14,020

Application of THE BOARD OF COOPERATIVE EDUCATIONAL SERVICES, SOLE SUPERVISORY DISTRICT OF CLINTON, ESSEX, WARREN, AND WASHINGTON COUNTIES with respect to the alleged ineligibility of William Haseltine to serve as a member of such board.

Decision No. 14,020

(September 17, 1998)

Joseph Lavorando, Esq., attorney for petitioner

MILLS, Commissioner.--Petitioner, the Board of Cooperative Educational Services, Sole Supervisory District of Clinton, Essex, Warren, and Washington Counties ("BOCES"), seeks a determination that William Haseltine ("respondent") is ineligible to serve as a member of the board. The application must be granted.

There are no facts in dispute in this matter. On April 24, 1996, respondent was duly elected as a member of BOCES for a term of three years commencing July 1, 1996, and ending on June 30, 1999.

On or about September 1, 1997, respondent became employed by the Elizabethtown-Lewis Central School District, a component school district of BOCES. It is BOCES' position that upon accepting this employment respondent became ineligible to serve as a member of the board because of Education Law "1950(9), which provides: "No person shall be eligible to be elected to the office of member of the board of cooperative educational services who is an employee of a school district in the supervisory district." At some point shortly after September 15, 1997, respondent was asked to resign from the board, but has continued to refuse to do so. At its meeting on October 16, 1997, petitioner authorized the commencement of legal action to determine respondent's eligibility, and this appeal was commenced on December 18, 1997.

Respondent does not deny any of the factual claims made by petitioner, but argues that Education Law "1950(9) only prevents the election of a person who is already employed by a component school district. He claims that the appeal is untimely because it was not commenced within 30 days of the beginning of his employment on or about September 1, 1997.

I will not dismiss this matter for untimeliness. Although petitioner did not commence the appeal within the 30 day period set forth in Commissioner's regulations (8 NYCRR "275.16), I see this matter of claimed ineligibility to hold office as similar to those cases which have dealt with uncertified teachers. A district's employment of an uncertified teacher, if unlawful, is a continuing wrong, subject to complaint at any time (Appeal of Kimball, 36 Ed Dept Rep 508; Appeal of Tropia, 32 id. 606; Appeal of Nettles, 31 id. 437; Appeal of Sroka, 31 id. 513). Based upon the reasoning of those cases, therefore, the appeal is not time-barred.

Prior to commencing this appeal, petitioner sought advice from my Office of Counsel. On September 10, 1997, a Department attorney offered the following analysis:

[I]t is my opinion that the BOCES board member should resign from office or be removed from office by the BOCES board. Education Law "1950(9), though phrased in terms of eligibility for election to a BOCES board seat, clearly is intended as a statutory prohibition against this form of dual office-holding. It may represent a legislative finding that employment by a component school district is incompatible with the position of BOCES board member because of the possibility of a BOCES takeover of a school district program, or there may other [sic] reasons for the prohibition, but there is no doubt that the Legislature intended to disqualify component school district employees from election to the BOCES board. If a BOCES board member could accept such employment on the day following his or her election and remain in office for a full term, the legislative intent would be easily thwarted. The better view, as expressed by the Commissioner in Matter of Todd [19 Ed Dept Rep 277], is that Education Law "1950(9) prohibits an individual from serving simultaneously as a BOCES board member and component school district employee. In analogous circumstances, the Attorney General has indicated that a person who violates the prohibition of Education Law "2502[7] against simultaneously serving as a board of education member and holding a city office forfeits his or her elective position (1997 Opn. Atty. Gen. 100[Inf]).

I concur with this legal analysis, and I conclude that respondent became ineligible to continue as a member of the Board of Cooperative Educational Services as of the commencement of his employment with the Elizabethtown-Lewis Central School District on or about September 1, 1997. I therefore find that respondent's action has resulted in a relinquishment of his position, and I hereby authorize petitioner to take appropriate steps to fill it.