Opn. No. ( 1978 )

Gary S. Bittner, Esq. Buffalo, N Y

This is in reply to your request for an opinion as to whether or not the Board of Education of the Lackawanna City School District is authorized to enter into a five-year employment contract with a salaried attorney in the exempt class of the Civil Service or whether or not such position may be filled by appointment only. The appointment of teachers and other employees in school districts in cities with less than 125,000 inhabitants is governed by Education Law, § 2509.

The position of school district attorney is not one of those positions specifically enumerated in section 2509. The appointment to the position is, therefore, statutorily authorized by subdivision 4 of section 2509 which provides in pertinent part as follows:

"* * * and all other administrative employees of a board of education, unless otherwise provided in this chapter, shall be appointed for a probationary period provided in the civil service law and regulations based thereon. * * *"

In the Lackawanna City School District the position of school district attorney has been classified by the Civil Service Commission as being in the exempt class of the Civil Service (Civil Service Law, § 41). No other statutory authority for the appointment of a school district attorney as an employee of the district has been discovered. Nor has research disclosed any authority authorizing a school district to contract for any specified period of time with a school district attorney who is an employee of the district appointing pursuant to Education Law, § 2509 (4).

Since a board of education has no power to make any contracts with its employees which are not specifically authorized by statute, we must conclude that the Board of Education of the City School District of the City of Lackawanna is not authorized to contract with a salaried attorney in the exempt class for a five-year period of employment. (See Matter ofBoyd v Collins, 11 N.Y.2d 238, and Downey v Lackawanna School District,51 A.D.2d 177.) The position of School District Attorney in the City School District of the City of Lacawanna may be filled only by appointment pursuant to Education Law, § 2509 (4).