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Decision No. 14,131

Appeal of MARK JACKSON and SCOTT ABRAMSON from action of the Board of Education of the City School District of the City of Long Beach regarding the eligibility of Norman B. Alpren to serve as a member of the board.

Decision No. 14,131

(May 19, 1999)

McQuade & Sculley, Francis X. McQuade, Esq., of counsel, attorneys for petitioners

Ingerman Smith, L.L.P., Anna M. Scricca, Esq., of counsel, attorneys for respondent

MILLS, Commissioner.--Petitioners seek a determination that Norman B. Alpren ("respondent") is ineligible to serve as a member of the Board of Education of the Long Beach City School District ("BOE"). The appeal must be dismissed.

Respondent, who has served on the BOE since 1989, was appointed to the volunteer position of Commissioner of the Long Beach Auxiliary Police in 1994. Petitioners contend that respondent is ineligible to serve on the BOE while simultaneously serving as Commissioner of the Auxiliary Police. Petitioners rely on Education Law "2502(7) in support of their position. They argue that "2502(7) prohibits an individual from serving on the board of education and holding any city office at the same time, other than that of a policeman or fireman. Petitioners contend that the position of Commissioner of the Auxiliary Police is a "city office" and that it does not fall within the statutory exception of "policeman" because it does not "endow police officer status."

Respondent denies many of the factual claims made by petitioners and argues that Education Law "2502(7) does not preclude his membership on the BOE. Respondent also contends that the appeal is untimely because it was not commenced within 30 days of the date of his election to the board. He further requests that I disregard petitioners' reply as untimely.

I will not consider the reply submitted by petitioners. Under 8 NYCRR 275.14, a reply must be served within 10 days of the service of the answer, or within 15 days if the answer was served by mail. It must also be verified. Respondent mailed his answer in this matter on August 4, 1998 and petitioners submitted their unverified reply on August 26, 1998, more than 15 days after the answer was served. Accordingly, the reply will not be considered (see, Appeal of Hendrick, 37 Ed Dept Rep 188; Appeal of Dahan, 37 id. 103).

Moreover, I will not dismiss this matter for untimeliness. Although petitioners did not commence the appeal within the 30 day period set forth in Commissioner’s regulations (8 NYCRR "276.16), the issue raised herein is similar to those cases in which the employment of an uncertified teacher is challenged. In those cases, the Commissioner has held that 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 ofNettles, 31 id. 437; Appeal of Sroka, 31 id. 513). The same reasoning applies in this case. If respondent is, in fact, ineligible to serve as a trustee on the BOE, his ineligibility is a continuing wrong that requires review. Accordingly, the appeal is not late (See, Application of the Board of Cooperative Educational Services, 38 Ed Dept Rep 224).

With respect to the merits, Education Law "2502(7) provides, in pertinent part:

"*** no person shall hold at the same time the office of member of the board of education and any city office other than as a policeman or fireman."

The questions to be answered, therefore, are whether the position of Commissioner of the Auxiliary Police constitutes a "city office", and, if so, whether respondent fits within the "policeman" exception which would allow him to serve in both capacities simultaneously.

I find that "2502(7) does not bar respondent from serving as both Auxiliary Police Commissioner and board member at the same time. First, under the facts of this case, I find that respondent does not occupy a city "office". Under the law, not all persons who serve the public are necessarily holders of a public "office". A determination of whether an appointee holds an "office" requires a review of the powers, duties, qualifications and other characteristics of the position. A public "officer" is someone whose position is created, and whose powers and duties are prescribed by statute and who exercises a high degree of initiative and independent judgment (Matter of County of Suffolk v. State of New York, 138 A.D. 2d 815, 816 [3d Dept. 1988], affd. 73 N.Y. 2d 838 [1988]). Additional indicia of a public office are the requirement to take an oath of office or file bonds, appointment for a definite term and receipt of a commission of office or an official seal (Macrum v. Hawkins, 261 N.Y. 193, 200-201 (1933).

Respondent's position as Commissioner of the Auxiliary Police meets none of these criteria. The position of Commissioner was not created by statute, nor are its powers or duties prescribed by statute. Even the City Charter makes no mention of the position. Rather, the position is provided for solely in the Bylaws of the Long Beach Police Department.

Also absent is any evidence that respondent exercises a high degree of initiative and judgment as Commissioner. Respondent is clearly a volunteer whose assignments are limited to traffic duty, crowd control, and assignments given at the discretion of Thomas Browne, the Commissioner of the Long Beach Police Department. Mr. Browne avers, in an affidavit submitted on respondent's behalf, that respondent takes direction and orders from him, and that respondent is not authorized to make independent, sovereign decisions affecting the safety and welfare of citizens of Long Beach. Petitioners have offered no persuasive evidence to rebut this testimony.

Moreover, the record shows that respondent is neither required to take an oath of office nor file a bond. Respondent is not appointed to a definite term; instead, he

serves as a volunteer at the pleasure of Commissioner Browne. Thus, respondent's position has none of the indicia of a public "office", and I find he does not hold a "city office" as that term is used in "2502(7).

Even if respondent were a city officer, he would not be barred under "2502(7) because he would qualify for the "policeman" exemption therein. The term "policeman" is not defined in the Education Law. While various provisions of State law include definitions of "policeman" or "police officer" (see, e.g., Vehicle & Traffic Law "132, Criminal Procedure Law "1-20(34), Civil Service Law "58), I do not find those definitions dispositive of the question before me. Rather, the answer to whether respondent fits within the exception lies in an examination of the rationale underlying the exemption and the particular characteristics of respondent's position.

Implicit in the Legislature's exemption of "policeman" and "fireman" is the recognition that such positions are not in direct conflict with membership on a school board. Indeed, the duties respondent is called upon to exercise as a trustee under Education Law "2503 do not, on their face, present a conflict with the duties of a policeman. Moreover, the "policeman" exemption reflects the Legislature's recognition that school boards could benefit from the service of those with the abilities, special insights, and spirit of public service of policemen and firefighters. These rationales are no less applicable to respondent merely because he is the Commissioner of the Auxiliary Police and is not himself a city policeman. The nature of the distinctions between an auxiliary policeman and a city policeman does not, in my view, undermine the rationale when the exception is applied to the auxiliary police.