Is Buffalo School Board President Barbara Seals Nevergold holding her seat on the board legally?
That question is confounding state education law experts in light of board member Carl Paladino’s petition to the state education commissioner, asking that Nevergold be removed from office.
Nevergold began serving on the board in January of last year, after the board appointed her to fill the remainder of Chris Jacobs’ term following his election as Erie County clerk.
Jacob’s at-large seat was to stand for re-election in May of next year. And Nevergold said it was her understanding that she would not be required to run for election until then.
Now Paladino is citing board policy 1240 that states a board appointee “shall hold his/her office until the next Annual Election of Board members.” That’s why Paladino concludes that Nevergold should have been required to run for election this past May in order to keep her seat.
But the question is more complicated.
The district administration, which is advising Nevergold, interprets the “next Annual Election of Board members” to mean the next election for the seat that has been filled by appointment.
What’s more, state education law is not clear on this issue, according to education lawyers who reviewed the situation at the request of The Buffalo News.
“I don’t know what the hell the answer is, to be perfectly honest with you,” said one education lawyer who asked not to be identified because he often provides advice to school districts across the state. “But here’s the thing – Paladino might possibly have a point here.”
Another education lawyer who advises school districts said concerns exist that Buffalo’s policy may have been improperly written, based on laws that apply to non-urban school districts.
State Education Commissioner John B. King Jr. is being asked to make a decision on Paladino’s petition, but he may not decide for months.
For most districts across the state, appointed board members are required to run for election the first time an election of school board members is held. So if a board member were appointed in January and school board elections were held that May, the appointee would face an election in four months.
Different rules apply to major city school districts in New York State, including Buffalo.
A review of state education law found that while the law is explicit regarding how appointments are made in Buffalo, it is not clear on when that appointee must run for election.
A cursory review of case law refers to a 1976 Erie County Supreme Court case, Nie v. the Buffalo Board of Education. In that case, a judge determined that an appointee’s term actually expired in December because state education law was silent on the matter, and Article 13 of the State Constitution states that appointees shall not serve longer than one year.
The lawyer who found the case, however, acknowledged that other case law may exist regarding similar situations of which he is not yet aware.
Local education lawyer Karl Kristoff, who serves as special outside counsel to the Buffalo School District, said he has yet to research the matter. The board hired him this week to defend Nevergold against Paladino’s petitions for her removal. This most recent petition is the second he has filed against the board president.
“The petition raises an important question of law that we are in the process of researching and hopefully will have resolved in time to provide a meaningful answer to the commissioner,” Kristoff said.
The commissioner typically does not rule on a petition for eight to 12 months after it is filed, which would mean Nevergold could run for re-election and win her seat in May before King issues his decision.
Given the urgency and unusual nature of his petition, Paladino said the commissioner may rule sooner.
“I would hope for a speedy determination because it obviously affects a lot of things,” he said.
It also opens up the question of whether Nevergold’s votes, cast since July when the new board was seated, are valid.
Since September, Paladino has criticized Nevergold’s leadership and accused her of supporting “improper and illegal” activities by School Superintendent Pamela Brown, supervising a faulty superintendent evaluation process, “sanctioning” improper district hiring practices and stifling open board discussion and debate.
Nevergold responded to Paladino in late September, saying that many of his assertions “are based on your opinion, supposition, hearsay, and distorted and/or manipulated facts.” She also said many of his other assertions “are simply untrue and preposterous.”
After the board meeting Wednesday, she accused Paladino of bullying her online and through legal means, and setting a bad example for district students. His repeated attempts to have Nevergold removed as board president have failed for lack of support by any of the other eight members.
“It’s further intimidation and harassment, as far as I’m concerned,” she said. “He’s raised the level of bullying to a new level.”