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Decision No. 14,710

Appeal of PATRICK RAUSCH from action of the Board of Education of the New Paltz Central School District regarding his term of office.

Decision No. 14,710

(March 29, 2002)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner, a member of the Board of Education of the New Paltz Central School District ("board"), seeks a determination that his seat on the board "was not vacated as of August 1, 2001, and that his execution of the oath of office on August 8, 2001, now permits him to fill the entire three-year term to which he was duly elected by the School District annual meeting on May 15, 2001." The board"s answer indicates that it "supports Petitioner"s request, if legally possible, to have his original term of office reinstated, through June 30, 2004." The appeal must be dismissed.

Petitioner was elected to a three-year term on the board in May 1998, and was reelected in May 2001. Petitioner did not attend the board"s reorganization meeting held July 2, and therefore did not complete and file an oath of office.

On July 5, the superintendent"s secretary sent petitioner an e-mail with respect to his oath:

Lis [president of the board] has some concern that you be sworn in as a Board member within 30 days. I will be going on vacation starting next week (July 9) and will be away for three weeks. My return date is July 30.

Would it be possible for you to come to the office tomorrow? If not, perhaps we can do it on July 30.

During the several weeks following, petitioner attended special board meetings on July 11 and 17, and August 1 and 2.

At the board meeting on August 8, the district clerk spoke to petitioner between a public session and an executive session about his failure to execute his oath of office, and petitioner then executed the oath. During the executive session, the board president informed her fellow board members that petitioner had neglected to execute an oath within 30 days of the commencement of his term of office. Both the board president and petitioner discussed the situation with the school district attorney over the next few days. The affidavit of the board president states that she hoped that the board would appoint petitioner to a seat on the board at its August 22 meeting "if that is what he wished and if he sent a letter requesting the appointment." On August 12, petitioner did send a letter to the board president:

As you indicated in our last phone conversation, I am requesting to refill my seat on the board which became vacant on August 2, 2001, due to the Public Officers Law section 30(1)(h).

I would appreciate a quick consideration of this matter by the board.

The board did not appoint petitioner at its August 22 meeting, apparently because of some uncertainty as to the propriety of such an appointment, and because petitioner did not attend the meeting.

On August 29, petitioner commenced this appeal. After the commencement of the appeal, on September 5, 2001, the board appointed petitioner as a member of the board, but to serve only until the next annual election of board members in May 2002. (Although the record does not reflect it, I presume that petitioner properly executed and filed an oath of office on September 5, or within 30 days thereafter.)

There is no question that petitioner was required to take an oath of office as a member of the board of education (New York State Constitution, Article XIII, "1; Public Officers Law "10; Application of Karpen, 39 Ed Dept Rep 98, Decision No. 14,185). The failure to properly take and file an oath of office with the district clerk within 30 days after the commencement of the term of office to which the member is elected causes the office to become vacant (Public Officers Law "30[1][h]). There is no factual dispute that petitioner failed to execute and file an oath by July 31, 2001. As a result, his seat became vacant by operation of law. The fact that petitioner executed and filed an oath on August 8 does not help his cause, since he had not been legally appointed by the board to fill the vacancy which then existed.

When petitioner was appointed on September 5, and presumably executed and filed his oath properly, the board had no authority to appoint him to a term beyond the next election. Article XIII, "3 of the New York State Constitution provides:

The legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next to succeeding the first annual election after the happening of the vacancy; provided, however, that nothing contained in this Article shall prohibit the filling of vacancies on boards of education, including boards of education of community districts in the city school district of the city of New York, by appointment until the next regular school district election, whether or not such appointment shall extend beyond the thirty-first day of December in any year. (Emphasis added.)

This constitutional mandate is the basis for Education Law "1709(17), which provides in pertinent part:

To fill any vacancy which may occur in said board by reason of a death, resignation, removal of office or from a school district, or refusal to serve, of any member or officer of said board; and the person so appointed in the place of any such member of the board shall hold his office until the next regular school district election.

Based upon these constitutional and statutory provisions, I have no authority to grant the relief petitioner seeks.