Decision No. 12,676

(March 27, 1992)

Giaccone & Giaccone, Esqs., attorneys for respondent Board of Education Middle Country Central School District, C. Francis Giaccone, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Middle Country Central School District, appeals from an opinion of the Board of Education of the Middle Country Central School District which found that respondent Galgano is eligible to serve on the Board of Education of the Middle Country Central School District even though her daughter is employed as a teacher in the district. Petitioner challenges this finding, and also asks whether or not respondent Galgano, a former district employee, can continue to serve on the board when she receives retirement benefits which the board must approve. The appeal must be dismissed.

Respondent Virginia Galgano was elected to the Board of Education of the Middle Country Central School District on or about June 26, 1991. Ms. Galgano's daughter was granted tenure in the Middle Country Central School District on or about October 15, 1974, having served a probationary period beginning on or about October 15, 1971. Respondent Galgano previously served in the district as a secretary to the superintendent, and was not part of any recognized bargaining unit. On or about July 11, 1991 petitioner wrote to the board contending that Ms. Galgano's service on the board, together with her daughter's employment as a teacher, violated Education Law '3016. By letter dated July 18, 1991, counsel for the board wrote to petitioner and opined that Ms. Galgano's service as a board member did not violate '3016. Subsequently, petitioner wrote to the Attorney General's Office, which supplied petitioner with copies of informal opinions relating to matters of conflict of interest under Gen. Mun. Law '800, etseq.

Petitioner contends that it is improper for respondent Galgano to serve on the board while her daughter is employed as a teacher in the school district. Petitioner further questions whether or not respondent Galgano can serve as a board member in a school district which provides her with retirement benefits. Respondent board contends that respondent Galgano's board membership does not violate Education Law '3016, and that there is no conflict of interest by virtue of her receipt of benefits from the district. Respondent alleges that Ms. Galgano is a retired secretary, is not a member of any bargaining unit, and that while she does receive health insurance benefits as do other retirees, such benefits are not contractual obligations and may be withdrawn by the board at any time. Respondent Galgano contends that there is no violation of Education Law '3016, and no conflict of interest created by receipt of retirement benefits.

Petitioner does not demand that respondent Galgano be removed from her elected position, but requests that I issue a declaratory ruling. Past decisions of the Commissioner establish that such relief will not be granted in an appeal pursuant to Education Law '310 (Appeal of a Child Suspected of Having a Handicapping Condition, 30 Ed Dept Rep 316; Appeal of Richards, 25 id. 38). Therefore, the appeal must be dismissed. However, for the benefit of the parties, I will discuss the issues raised by petitioner.

Education Law '3016(2) provides:

Respondent Galgano was elected to serve as a member of the board of education approximately 20 years subsequent to the time her daughter was employed by the Middle Country Central School District. Respondent Galgano's daughter acquired tenure approximately 17 years prior to respondent's election. Education Law '3016(2) requires a two-thirds vote of the board of education upon the initial employment of a teacher who is related by blood or marriage to a member of the board of education. Since the initial action to employ respondent Galgano's daughter occurred 20 years prior to her election, this provision does not apply to the facts of this case. Furthermore, as a tenured teacher, respondent Galgano's daughter has a permanent right to employment in the district unless she were to be dismissed following disciplinary charges brought by the board, or if the number of teaching positions were to be reduced to a number sufficient to require that her position be abolished. Therefore, I find Education Law '3016 inapplicable.

The issue with respect to respondent Galgano's receipt of health insurance benefits is less clear. While the record establishes that respondent does receive such benefits, it does not appear the benefits are conferred based upon any contract or collective bargaining agreement affecting respondent Galgano. Pursuant to General Municipal Law '801, a member of a board of education is prohibited from having an interest in any contract with a school district in which he or she is an officer and has the power to authorize or approve the contract or to approve payment under the contract. Since there is no contract which results in respondent Galgano receiving health insurance benefits, petitioner has failed to carry his burden of demonstrating that General Municipal Law '801 has been violated. Appeal of Samuels and Zohn, 25 Ed Dept Rep 228. Of course, in order to avoid any appearance of impropriety, respondent Galgano must not participate in any future vote which might affect the benefits she receives. However, since petitioner bears the burden of establishing entitlement to the relief sought, and has failed to carry that burden, the appeal must be dismissed (Appeal of Toborg, 25 Ed Dept Rep 285; Matter of Nanni, Weston & Snyder, 23 id. 444).

THE APPEAL IS DISMISSED.

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