IN RE: ANTHONY SCRO

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: ANTHONY SCRO, PETITIONER–RESPONDENT, v. BOARD OF EDUCATION OF JORDAN–ELBRIDGE CENTRAL SCHOOL DISTRICT AND JOHN DOE, TREASURER OR ACTING TREASURER, JORDAN–ELBRIDGE CENTRAL SCHOOL DISTRICT, RESPONDENTS–APPELLANTS.

CA 11–00781

Decided: September 30, 2011

PRESENT:  SCUDDER, P.J., PERADOTTO, GORSKI, AND MARTOCHE, JJ. THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (FRANK W. MILLER OF COUNSEL), FOR RESPONDENTS–APPELLANTS. O'HARA, O'CONNELL & CIOTOLI, FAYETTEVILLE (DOMINIC S. D'IMPERIO OF COUNSEL), FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

TIMOTHY G. KREMER, EXECUTIVE DIRECTOR, LATHAM (JAY WORONA OF COUNSEL), FOR NEW YORK STATE SCHOOL BOARDS ASSOCIATION, INC., AMICUS CURIAE.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum:  Petitioner commenced this CPLR article 78 proceeding alleging that respondents terminated his employment as a school district treasurer in violation of his due process rights and Education Law § 306(1) and seeking, inter alia, reinstatement to his position with back pay.   We conclude that Supreme Court erred in granting the petition.

We agree with respondents and the contention of the New York State School Boards Association, Inc. in its amicus curiae brief that, under Education Law § 2130(4), petitioner was an at-will employee who was not entitled to pre-termination due process.  Education Law § 2130(4) provides in relevant part that “[t]he board of education in every union free school district whose limits do not correspond with those of an incorporated village or city shall appoint a district treasurer, and a collector who shall hold office during the pleasure of the board.”   Although that statute refers to union free school districts, it applies with equal force to central school districts (see Education Law § 1804[1];  § 1805;  Appeal of DeMan, 35 Ed Dept Rep 171, 173).   Both treasurers and collectors “hold office during the pleasure of the board” (§ 2130[4] ), meaning that “a board of education has the right to discontinue the services of its treasurer at any time” (Appeal of Myers, 34 Ed Dept Rep 238, 239–240).   Thus, contrary to petitioner's contention, Education Law § 306(1) was not the only means by which respondents could terminate his employment (see id.).   Petitioner was the equivalent of an at-will employee inasmuch as he served “ ‘at the pleasure of’ “ respondent Board of Education (Matter of Cathy v. Prober, 195 A.D.2d 999, 1000, lv denied 82 N.Y.2d 660;  see e.g. Moore v. County of Rockland, 192 A.D.2d 1021, 1022–1023), and he therefore was not entitled to pre-termination due process (see Trakis v. Manhattanville Coll., 51 AD3d 778, 780–781;  Natalizio v. City of Middletown, 301 A.D.2d 507, 507–508).   For that reason, the court erred in granting the petition.

In any event, we agree with respondents that they had an alternative justification for their dismissal of petitioner, based on his failure to file his oath of office within 30 days of the commencement of the term of district treasurer, as required by Public Officers Law § 30(1)(h).  Where, as here, petitioner was present at the board meeting at which he was appointed and thus had actual notice of his appointment, written notice thereof was not required to commence the 30–day period (see McDonough v. Murphy, 92 A.D.2d 1022, 1023–1024, affd 59 N.Y.2d 941).   Here, petitioner had notice of his appointment on July 7, 2010 but failed to file his oath of office until August 9, 2010, beyond the requisite 30–day period.   Due to that failure, petitioner's office automatically became vacant (see Lombino v. Town Bd. of Town of Rye, 206 A.D.2d 462, 463, lv denied 84 N.Y.2d 807;  Staniszewski v Lackawanna Mun. Hous. Auth., 191 A.D.2d 1048, 1049;  Boisvert v. County of Ontario, 89 Misc.2d 183, 186, affd 57 A.D.2d 1051), and “no hearing on charges was required to dismiss him from office” (Matter of Comins v. County of Delaware, 73 A.D.2d 698, 698;  Matter of Oakley v. Longobardi, 51 Misc.2d 427, 428).

Finally, petitioner's request for affirmative relief, i.e., an award of attorneys' fees, costs, and disbursements, is not properly before us inasmuch as he failed to take a cross appeal (see e.g. City of Rye v. Public Serv. Mut. Ins. Co., 34 N.Y.2d 470, 474).

Patricia L. Morgan

Clerk of the Court