Tuesday, October 11, 2011

Termination of an individual holding a public office “at-will”

Termination of an individual holding a public office “at-will”
Matter of Scro v Board of Education of Jordan-Elbridge Cent. School Dist., 2011 NY Slip Op 06738, Appellate Division, Fourth Department

Anthony Scro challenged his termination as the school district’s treasurer contending that such action violated his right to due process right. He obtained a court order from Supreme Court, Onondaga County annulling his termination and directing the school district to reinstate him to his former position.

The Appellate Division reversed the lower court “on the law” and dismissed Scro’s petition.

The court said that it agreed with the school district and the New York State School Boards Association, Inc.* that, under Education Law §2130(4), Scro was an at-will employee who was not entitled to pre-termination due process. 

The Appellate Division noted that although Education Law §2130(4) provides in relevant part that "[t]he board of education in every union free school district … shall appoint a district treasurer … who shall hold office during the pleasure of the board," it applies with equal force to central school districts such as the Jordan-Elbridge Central School District.

As Saco held office “during the pleasure of the board," the Board of Education had the right to discontinue his services at any time. Thus, said the Appellate Division, Saco “was the equivalent of an at-will employee” inasmuch as he served at the pleasure of' the Board of Education and was not entitled to “pre-termination due process.”

Focusing on another aspect of the case, the Appellate Division said that it agreed the school district that Saco, having failed to file his oath of office within 30 days of his being given notice of his appointment as required by Public Officers Law §30(1)(h), the office to which he had been appointed “automatically became vacant” and "no hearing on charges was required to dismiss him from office."**

Public Officers Law §30(1)(h), in pertinent part, provides that should an individual appointed to the position refuse or neglect to file his official oath or undertaking, within thirty days after notice of his or her appointment such “office shall be vacant … before the expiration of the term thereof….”

* New York State School Boards Association, Inc. filed an amicus curiae brief in support of the Jordan-Elbridge Cent. School District arguing that Scro served as an at-will employee and thus was not entitled to pre-termination hearing.
**  See, also, Informal Opinions of the Attorney General 84-17 in which the Attorney General indicated that in the event an oath of office required by law is not timely filed, the office “becomes vacant by operation of law.”

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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