Can a New York BOCES board member work as an occasional per diem substitute teacher in one of the school districts the BOCES serves?

Plain-English summary

A member of the Oneida-Herkimer-Madison BOCES was a retired teacher who had occasionally substituted in the New York Mills Union Free School District before being elected to the BOCES. He wanted to keep doing so. The school district maintained a roster of approved substitutes, and would have selected him from that list whenever a teacher was out. The school district is a component of the supervisory district the BOCES serves. The district's attorney asked the AG whether Education Law § 1950(9) prohibited the arrangement.

Section 1950(9) says: "No person shall be eligible to be elected to the office of member of a board of cooperative educational services who is an employee of a school district in the supervisory district." On its face, the text bars electing a current school-district employee to a BOCES. The question was whether the reverse situation, a sitting BOCES member taking on substitute work in a component district, also fell within the statute.

The AG concluded yes. The statute is a legislative declaration that the two positions are incompatible, and incompatibility runs both ways. The legislative history of § 1950(9) supplies the reasoning. A 1958 memorandum to the Governor described the purpose: "to prevent conflicts of interest [that] might occur if school district employees elected to such a board were to take part in electing the district superintendent of schools." Because the BOCES selects, supervises, and may remove the district superintendent of the supervisory district (Education Law §§ 1950(4), 2204, 2212), a BOCES member who is also a school-district employee has a built-in conflict: the BOCES member would have a voice in selecting and rejecting candidates for a position superior to his or her own school-district employment.

That conflict does not depend on the direction in which the dual role developed. If only § 1950(9)'s literal "election" prohibition mattered, an employee could be elected and then take school-district work the next day. The AG read the State Education Department's 1998 Application of the BOCES (Clinton, Essex, Warren, and Washington Counties) decision as the same conclusion: § 1950(9) bars employment by a school district of a BOCES member as well as election of a school-district employee to the BOCES.

The next question was whether occasional per diem substitute teaching counted as "employment." The AG said yes. The plain language of § 1950(9) does not distinguish between long-term and short-term employees, and the legislative history shows no intent to draw that line. The AG followed the line drawn long ago in Appeal of Ducey, 65 St. Dep't Rep. 65 (Ed. Dep't 1943), and codified in 8 N.Y.C.R.R. § 80-5.4(a), between regular substitute service (longer assignments substituting for a teacher on leave) and itinerant or per diem substitute service (shorter, ad hoc fill-ins). Both kinds are still "employment" by the school district, and § 1950(9) reaches both. The BOCES member could not accept even occasional per diem substitute work in a component district.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does § 1950(9) apply if the BOCES member's prior work in the district predated election?
The retired-teacher fact pattern here did not violate the statute at the time of election because the teacher was retired. The issue arose only when the BOCES member wanted to resume substitute work after being elected. The AG's reading is that resuming employment after election violates § 1950(9) the same as initial election while employed would.

What about working as a substitute in a school district that is not part of the BOCES's supervisory district?
Section 1950(9) is limited to school districts "in the supervisory district." The opinion does not address employment outside the supervisory district, which would not implicate the same conflict the statute targets.

Can the BOCES member resign from BOCES to take a substitute teaching position?
The AG's analysis is about the conflict between simultaneous service in both roles. Resignation removes the simultaneity. A former BOCES member could presumably take school-district work after resigning, subject to any other post-employment restrictions that might apply.

Does this apply to non-instructional school-district employment too (clerical staff, custodian, food service)?
Section 1950(9) speaks broadly of "an employee of a school district." The opinion's logic about plain language and conflict of interest does not depend on the type of work. Non-instructional district employees would generally also fall within the statute.

What is the practical effect on small communities where the same retirees teach across BOCES and districts?
The opinion does flag a real-world cost: a BOCES board member loses a long-standing source of supplemental work. The Legislature's judgment, reflected in § 1950(9), is that the conflict-of-interest harm outweighs that cost. The opinion does not give the BOCES discretion to waive the conflict.

Background and statutory framework

A BOCES exists to provide shared educational services across a group of school districts that form a "supervisory district." Education Law § 1950(1). The district superintendent of the supervisory district serves as both the State Education Department's local representative (§ 2215) and as the executive director of the BOCES (§ 1950(2)). The BOCES members select and may remove that superintendent (§§ 1950(4), 2204, 2212). The position of district superintendent is therefore at the intersection of state, BOCES, and component-district interests.

Section 1950(9) draws an incompatibility line to keep BOCES members away from conflicting school-district employment. The 1958 bill jacket materials show the Legislature's specific concern: a principal or teacher employed by a component district would have an interest in who is selected as district superintendent, and that selection is partly the BOCES member's job.

Substitute teaching is divided by State Education Department regulation and longstanding precedent into long-term substitute service (filling in for a teacher on extended leave) and itinerant or per diem substitute service (short or ad hoc fill-in). Appeal of Ducey (1943) and 8 N.Y.C.R.R. § 80-5.4(a) are the references. Both kinds remain school-district "employment" for purposes of § 1950(9).

The 1998 SED decision Application of the BOCES (Clinton, Essex, Warren, and Washington Counties) had already extended § 1950(9) to bar a sitting BOCES member's school-district employment, not just initial election of a school-district employee to the BOCES. The 2007 AG opinion follows that direction and adds that per diem substitute teaching is no exception.

Citations

• Education Law § 1950(1) (BOCES purpose); § 1950(2) (district superintendent serves as BOCES executive director); § 1950(4), § 2204 (BOCES selection of district superintendent); § 1950(9) (eligibility/incompatibility provision); § 2212 (BOCES removal of district superintendent); § 2215 (district superintendent's general powers and duties).
• 8 N.Y.C.R.R. § 80-5.4(a) (regulation distinguishing long-term and itinerant substitute teachers).
• Appeal of Ducey, 65 St. Dep't Rep. 65, 67 (Ed. Dep't 1943) (defining categories of substitute service).
• Application of the BOCES, Sole Supervisory District of Clinton, Essex, Warren, and Washington Counties, 38 Ed. Dep't Rep. 224, Decision No. 14,020 (1998) (§ 1950(9) bars employment by component district of sitting BOCES member).
• Memorandum to the Governor, reprinted in Bill Jacket for ch. 295 (1958) (legislative history of § 1950(9)).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2007-2_pw.pdf

Original opinion text

EDUCATION LAW §§ 1950(1), 1950(2), 1950(4), 1950(9), 2204, 2212, 2215; 8 NYCRR 80-5.4(a)

Education Law § 1950(9) precludes a BOCES member from accepting occasional employment as a per diem substitute in a school district that is part of the supervisory district in which the BOCES serves.

February 21, 2007

Benjamin J. Ferrara
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.
Attorney for the New York Mills Union Free School District
5010 Campuswood Drive
East Syracuse, NY 13057

Informal Opinion No. 2007-2

Dear Mr. Ferrara:

You have requested an opinion regarding whether a member of a board of cooperative educational services ("BOCES") is prohibited, pursuant to Education Law § 1950(9), from occasional employment as a per diem substitute in a component school district. As explained more fully below, we are of the opinion that he is so prohibited.

Background

You have explained that a member of the Oneida-Herkimer-Madison BOCES is a retired teacher who, before being elected to the BOCES, occasionally substituted in the New York Mills Union Free School District ("School District"), and, if possible, would like to continue to do so. You have further explained that the School District maintains a list of individuals available to substitute for absent teachers, and the BOCES member would be selected by the School District from this list. You have advised us that the School District is a component of the supervisory district for which the BOCES provides services.

"Substitute service divides itself into two categories, the first of which may be termed 'regular substitute service' and the second 'itinerant substitute service'." Appeal of Ducey, 65 St. Dep't Rep. 65, 67 (Ed. Dep't 1943). While a "regular substitute" is "one who takes over the class of another teacher upon a permanent substitute basis; i.e. [sic], under circumstances where the regular teacher for maternity reasons, or for sabbatical or sick leave, or for some other reason, has been given a definite leave of absence" and such service "contemplates a regular assignment for at least a term," an itinerant or "per diem" substitute is one who is "called in for half a day, for short periods or for a week or more, to take the place of a teacher who is temporarily absent because of sickness or otherwise." Id.; see also 8 N.Y.C.R.R. § 80-5.4(a) (defining substitute teachers employed on a long-term basis and on an itinerant basis).

Education Law § 1950(9) provides that "[n]o person shall be eligible to be elected to the office of member of a board of cooperative educational services who is an employee of a school district in the supervisory district." Your question is whether section 1950(9) precludes even occasional employment as a per diem substitute teacher of a BOCES member by the School District.

Analysis

Initially, we note that while on its face, section 1950(9) only prohibits an employee of the school district from "be[ing] elected" a member of a BOCES, we believe that this is in fact a legislative statement as to the incompatibility of the two positions. That is, as we explain more fully below, we believe that the Legislature intended to prohibit a BOCES member from being employed by a component school district as well as to prohibit an employee of a component school district from being elected to a BOCES.

The responsibilities of the members of the BOCES include selecting the superintendent of the supervisory district whenever the position is vacant. Education Law §§ 1950(4), 2204. The BOCES members may also remove the district superintendent from office. Id. § 2212. The superintendent of the supervisory district serves as a local representative of the State Department of Education, with statutory responsibilities in that capacity. See, e.g., id. § 2215 (general powers and duties of superintendent). He or she also serves as the executive director of the BOCES. Id. § 1950(2).

The legislative history to Education Law § 1950(9) indicates that this provision was intended to "prevent conflicts of interest [that] might occur if school district employees elected to such a board were to take part in electing the district superintendent of schools[,] who is the State official charged with supervision of school affairs in the supervisory district." Memorandum to the Governor, reprinted in Bill Jacket for ch. 295 (1958), at 6; see also id. at 7 ("Since [the BOCES] appoints the district superintendent of schools, there appears to be a clear conflict wherein a principal or a teacher in a local school district will have a voice in the selection or rejection of a candidate for a position of district superintendent of schools, which position is superior to the position of said employees.").

The potential conflict of interest would arise from the simultaneous holding of both positions, not just from the election to the BOCES of a current school district employee. Indeed, to construe otherwise would allow the purpose of the legislation to be thwarted by the simple mechanism of delaying employment by a component school district until after being elected a member of a BOCES. Therefore, to effect the intent of the legislation, the prohibition must apply to BOCES members accepting employment by a component school district as well as school district employees being elected to the BOCES. See Application of the Board of Cooperative Educational Services, Sole Supervisory District of Clinton, Essex, Warren, and Washington Counties, 38 Ed. Dep't Rep. 224, Decision No. 14,020 (1998) (concluding that Education Law § 1950(9) does not only prevent the election of a school district employee but also precludes employment by a school district of a BOCES member).

Having concluded that section 1950(9) constitutes a legislative expression of incompatibility of positions, we turn now to the question of whether this section precludes a BOCES member from occasional employment as a per diem substitute teacher for one of the component school districts. We believe that it does. The prohibition against employment by a component school district, under the plain language of section 1950(9), applies equally to a long-term employee and an occasional employee. The legislative history does not indicate an intent to distinguish between types of employees based on length or frequency of employment.

We therefore conclude that section 1950(9) precludes a BOCES member from accepting occasional employment as a per diem substitute in a school district that is part of the supervisory district in which the BOCES serves.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions