Decision No. 12,950

(June 22, 1993)

Adam D. Kaufman, Esq., attorney for respondent.

SOBOL, Commissioner.--Petitioner, a resident of the Rochester City School District, requests that I order the president of the board of education to fill a board vacancy caused by the resignation of a member. The appeal must be dismissed.

On or about January 1, 1992, a vacancy occurred on the Board of Education of the Rochester City School District because one of its members resigned. The resignation happened because the incumbent member was elected to the city council. Petitioner commenced this appeal on or about August 19, 1992 by service of a notice of petition and petition on Archie Curry, who was elected president of the board of education on May 21, 1992. Petitioner contends that under Education Law '2553(9)(e), the president of the board of education must fill the board vacancy with an individual from the same political party as the person who vacated the office. He contends that respondent Curry has failed to fulfill this obligation.

In its answer, filed on or about September 8, 1992, respondent included an affidavit from Mr. Curry stating that a primary election was to be held in Rochester on September 15, 1992 to choose a Democratic candidate to run in the November 1992 general election for the existing vacancy. The affidavit further states that because the resigning board member was a democrat, after the primary President Curry intended to appoint the winner of that primary to fill the existing vacancy on the board of education for the remainder of 1992. Attached to a subsequent letter from counsel for respondent was a letter from Mr. Curry to the winner of the democratic primary, stating that she had been appointed to the board vacancy effective October 1, 1992.

In consideration of the events which have occurred since the filing of the petition and the answer, I find that this matter is moot and I will dismiss it on that basis (Appeal of the Board of Education of the Windsor C.S.D., 31 Ed Dept Rep 338; Appeal of Scribani, 30 id. 164).

For the benefit of the parties, however, Education Law '2553(9)(e) provides:

While petitioner is correct that it is incumbent on the president of the board to fill the vacancy, respondent's contention that the statute contains no time limitation within which such an appointment must be made is also correct. Under the circumstances, it would be incumbent upon the president of the board to make the required appointment within a reasonable period of time. However, the question of what is reasonable cannot be resolved in a vacuum; what might be reasonable under one set of circumstances might be unreasonable under another. While petitioner alludes to several impending decisions of importance to the Rochester school district which will come before the board, he does not allege that the failure to make an appointment will cause an impasse on any of those issues he describes. Therefore, and under the particular circumstances in this appeal, I do not find that it was unreasonable for respondent Curry to appoint the winner of the democratic primary to the vacant position for the remainder of the term.

THE APPEAL IS DISMISSED.

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