The timeliness of the filing of an appointee’s Oath of Office critical to his or her continuation in the position

The timeliness of the filing of an appointee’s Oath of Office critical to his or her continuation in the position
Matter of Scro v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2011 NY Slip Op 30182(U), Sup Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports]

Anthony Scro filed an Article 78 proceeding seeking to annul the decision of Jordan-Elbridge Central School District Board of Education terminating his employment as “Treasurer” of the School District as a result of his alleged failure to file his Oath of Office in timely fashion.*

The Board moved to dismiss Scro’s petition, contending that its action was consistent with law in that Scro had failed to file his Oath of Office within the time period permitted by Public Officers Law §30.1.h and thus he had been removed from his position “ by operation of law.”

Public Officers Law §30.1.h, in pertinent part, provides that a public office “shall be vacant upon” … the appointee’s “refusal or neglect to file his official oath or undertaking, if one is required … within thirty days after notice of his appointment, or within thirty days after the commencement of such term; or to file a renewal undertaking within the time required by law, or if no time be so specified, within thirty days after notice to him in pursuance of law, that such renewal undertaking is required.”

According to the decision, Scro was initially appointed to the statutory office of School District Treasurer, effective October 31, 2007. He was thereafter reappointed at the beginning of the following three fiscal years at the School Board’s annual reorganization meetings in July, each such reappointment being to a new twelve month term as Treasurer.

Scro was last appointed to that position by the Board to serve a one-year term effective July 1, 2010 and had signed his Oath of Office on August 9, 2010.

The Board alleged that Scro’s term began on July 1, 2010 and the Board had reappointed him on July 7, 2010. Accordingly, said the Board, the latest possible date for Scro to file his Oath of Office within the time period permitted by §30.1.h was Friday, August 6, 2010.

Observing that “The requirement for the taking and filing of an Oath of Office is not an obscure requirement, but instead is fundamental and of significant import …” Judge Greewood said that the requirement is not waivable and is strictly construed and that had Scro failed to file his Oath of Office within the requisite thirty days as required by §30.1.h, the appointment would be vitiated and the office would be deemed vacant.

In this instance, said the court, the timeliness of Scro’s execution of his Oath of Office is critical. Was it filed “within thirty days after notice of his appointment, or within thirty days after the commencement of such term...”, as required by statute?

Judge Greenwood said that “There is no question that [Scro’s] term commenced on July 1, 2010 and the appointment did not take place until the School Board’s reorganizational meeting of July 7, 2010” nor was there any question that Scro had not executed his Oath of Office within thirty days of either of those dates.

However, observed Judge Greenwood, §2121(5) of the Education Law provides that it is the duty of the school district clerk to “give notice immediately to every person elected or appointed to the office of his election or appointment; and also to report to the town clerk of the town in which the school house of his district is situated, the names and post-office addresses of such officers, under a penalty of five dollars for neglect in each instance.”

As the Legislature specifically required notice to an officer and not simply action of the Board.
Judge Greenwood said that Jeanette Brock, the School District Clerk, was obligated to discharge her statutory duty under the Education Law "by providing notice to each officer of his [or her] appointment and this constituted a condition precedent to the officers’ execution of the Oath."

Finding that Brock had advised all officers required to sign the Oath of Office form “within three to four business days of the reorganization meeting”, and viewed in the light most favorable to the Board, Brock provided the Scro with notice on either July 12 or July 13, and that Scro had signed his Oath of Office on August 9, Judge Greenwood ruled that Scro had timely executed his Oath of Office and thus he may not be removed during the term of his employment except through petition to the Commissioner of Education.

Holding that the Board’s action in terminating Scro’s employment violated his statutory rights, Judge Greenwood declared the Board’s action “null and void and ultra vires”** and ordered Scro’s immediately reinstatement to his office as District Treasurer “with all back pay and associated benefits he would have been entitled to had the improper termination not occurred.”

* N.B. The failure to file a timely oath cannot be cured by subsequently filing the required oath [Opinion of the Attorney General, 86-41, Informal].

** Ultra vires -- beyond the power of the body so acting.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2011/2011_30182.pdf