Appeal of MARTHA KAVANAUGH from action of the Board of Education of the Hamburg Central School District regarding a personnel matter.

Decision No. 16,870

(February 4, 2016)

Hodgson Russ, LLP, attorneys for respondent, Andrew J. Freeman, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Hamburg Central School District (“respondent”) to grant tenure to James Martinez, an elementary school principal in respondent’s district.  The appeal must be dismissed.

Petitioner is a tenured teacher in respondent’s district. According to the record, respondent employed Martinez as an assistant principal in 2003.  Apparently, at some point thereafter, Martinez was employed as an elementary school principal in the district.  At its May 12, 2015 meeting, respondent granted Martinez administrative tenure as principal, effective July 11, 2015.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 7, 2015.

The petition contains almost 200 paragraphs detailing Martinez’s employment history in the district and alleging various acts of misconduct, harassment, intimidation, and impropriety by Martinez and others.

Petitioner asserts that Martinez has committed acts that raise questions as to his moral character.  Therefore, petitioner requests that I reverse respondent’s May 12, 2015 grant of tenure to Martinez and stay any decision to grant him tenure, pending an investigation by the State Education Department’s Office of School Personnel Review and Accountability and referral of the matter to law enforcement.

Respondent contends that its decision to grant Martinez tenure was proper in all respects and that petitioner has failed to demonstrate that its May 12, 2015 action was arbitrary or capricious.  Respondent asserts that petitioner lacks standing to maintain the appeal.  Respondent also contends that the appeal must be dismissed as untimely and for failure to join necessary parties.

The appeal must be dismissed on procedural grounds.  As a threshold matter, petitioner lacks standing to challenge respondent’s grant of tenure to Martinez.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Petitioner has failed to set forth any facts or evidence that her civil, personal or property rights are directly affected by respondent’s grant of tenure to James Martinez.  Instead, she expresses concern that others may be harmed by Martinez’s continued employment.  Having failed to demonstrate the requisite personal injury, petitioner lacks standing to bring this appeal, warranting its dismissal.

The appeal must also be dismissed for failure to join Martinez as a respondent.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Clearly, were petitioner to prevail in the appeal, Martinez’s rights would be adversely affected.  Martinez is not clearly named as a respondent in the caption herein and there is no indication that he was served with a copy of the notice of petition and petition.  Accordingly, the appeal must be dismissed for failure to join a necessary party.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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