Appeal of JULES J. COMEAU from action of the Board of Education of the Long Lake Central School District regarding a board resolution.

Decision No. 17,372

(April 6, 2018)

Girvin & Ferlazzo P.C., attorneys for respondent, Ryan P. Mullahy, Esq. of counsel

ELIA, Commissioner.--Petitioner appeals from a resolution adopted by the Board of Education of the Long Lake Central School District (“respondent” or “board”) which approved a side letter of understanding with the Long Lake Faculty Association (the “union”).  The appeal must be dismissed.

The board consists of five members.  On February 12, 2015, board member Christine Blumberg (“Ms. Blumberg”) resigned from her position on the board, effective January 29, 2015.  Pursuant to district policy and Education Law §1709(17),[1] the board temporarily appointed Ms. Lorrie Hosley (“Ms. Hosley”) to fill the vacancy left by Ms. Blumberg’s resignation until an election scheduled for May 2015.

At the district’s May 19, 2015 annual election, Brian Penrose (“Mr. Penrose”) was a successful candidate in the election to fill the unexpired term of Ms. Blumberg’s board position.  

On June 5, 2015, respondent posted a draft agenda for its June 11, 2015 meeting on the Long Lake Central School District’s (“district”) website.  This draft agenda indicated that Mr. Penrose would be sworn in early in the meeting.

At the beginning of the board meeting on June 11, 2015, respondent distributed a revised agenda for the board meeting.  In this revised agenda, Mr. Penrose’s swearing in had been moved to the end of the meeting.  During the meeting, and prior to Mr. Penrose taking the oath of office, the board approved a side letter of understanding with the union (the “side letter”) in a 3-2 vote.  In this side letter, respondent agreed to modify a provision of the parties’ collective bargaining agreement relieving retirees who retired prior to July 1, 2014 from the obligation to pay health insurance premiums.  Ms. Hosley was one of the three board members who voted to approve the resolution.  This appeal ensued.

Petitioner asserts that respondent improperly postponed Mr. Penrose’s swearing in so that Ms. Hosley could provide the necessary vote to approve the side letter.  Petitioner further contends that respondent inappropriately moved Mr. Penrose’s swearing in from the beginning of the June 11, 2015 board meeting to the end of the meeting to prohibit him from voting on the side letter resolution.  Petitioner also argues that the side letter will increase the amount of taxes he and other district residents will be required to pay.  Petitioner requests that the June 11, 2015 side letter resolution be vacated, and that the side letter be “declare[d] void.”

Respondent contends that the petition must be dismissed for failure to join necessary parties and because the petition fails to state a claim upon which relief can be granted.  Respondent further contends that the Public Officers Law merely requires that an elected board member take and file his or her oath of office within 30 days of the commencement of his or her term, and that Mr. Penrose complied with this requirement.

The appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Here, petitioner seeks to invalidate a side letter which, if annulled, would require approximately 18 retired teachers to contribute money in order to maintain their health insurance.  Thus, if petitioner were successful, these teachers would have to pay additional money or risk losing their health insurance coverage.  Therefore, under these facts, I find that petitioner’s failure to name these teachers in the caption in the appeal and serve them with a copy of the notice of petition and petition warrants dismissal of the appeal (Appeal of Radow, 48 Ed Dept Rep 158, Decision No. 15,824; Appeal of Gargan, 40 id. 465, Decision No. 14,528).

Nevertheless, even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Here, petitioner has failed to allege or prove that the timing of Mr. Penrose’s swearing in violated any law or policy. The Public Officers Law requires that every officer shall take the required oath of office, and that a public officer’s refusal or neglect to file said oath “before or within thirty days after the commencement of the term of office for which he [or she] is chosen” shall create a vacancy in the office (Public Officers Law §§10, 30[1][h]).  Thus, Mr. Penrose was only required to take and file his oath of office within 30 days of the commencement of his term.  Therefore, there is no legal basis for a finding that Mr. Penrose’s failure to take his oath of office at the beginning of a board meeting as opposed to the end of a board meeting, especially where this meeting was well within the 30-day timeframe imposed by the Public Officers Law, was in any way improper.

Moreover, although petitioner has alleged that respondent delayed Mr. Penrose’s swearing in so that respondent could utilize Ms. Hosley’s vote to pass the side letter resolution, petitioner fails to allege or prove that the vote would have been different had Mr. Penrose participated.  Petitioner asserts that he spoke with Mr. Penrose on June 12, 2015 and, during this conversation, Mr. Penrose told him that he had agreed to another board member’s request to postpone his swearing in until the end of the June 11, 2015 board meeting.  According to petitioner, Mr. Penrose also “stated ... that he was not made aware” that the side letter “would be discussed and voted on at the June 11, 2015.”  However, other than his own conclusory assertions, petitioner has submitted no evidence to support his claims.  For example, petitioner does not allege or establish that Mr. Penrose would have voted against the side letter had he been sworn in at the start of the meeting.  Accordingly, petitioner has failed to meet his burden of proving that, but for the allegedly improper conduct, the outcome of the vote would have been different.

THE APPEAL IS DISMISSED.

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