Appeal of ERIN MURPHY from action of the Board of Education of the Cairo-Durham Central School District, Cairo-Durham Central School District and Erin Christner regarding seniority.

Decision No. 17,234

(October 27, 2017)

Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., attorneys for petitioner, Matthew J. Dillon, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondents, Kristine A. Lanchantin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the actions of the Board of Education of the Cairo-Durham Central School District (“respondent board”) in calculating seniority credit and excessing petitioner from her position while retaining respondent Erin Christner (“respondent Christner”).  The appeal must be dismissed.

On September 20, 2007, petitioner was given a probationary appointment in the Cairo-Durham Central School District (“district”) in the position of sixth grade English teacher, effective October 1, 2007.  Petitioner was granted tenure in the English tenure area, effective October 1, 2010.  Thereafter, respondent Christner was given a probationary appointment in the Remedial Reading tenure area, effective September 1, 2008.

In 2012, as a result of the Commissioner’s decision in Appeal of De Oliveira, in which petitioner and the district were joined as respondents and it was determined by the Commissioner that petitioner had actually been serving in the Elementary Education tenure area, not the Remedial Reading tenure area, the district thus adjusted her tenure area and seniority credit accordingly (Appeal of De Oliveira, 52 Ed Dept Rep, Decision No. 16,411). Additionally, pursuant to the decision in De Oliveira, the district determined that the appointment of several teachers to the Remedial Reading tenure area, including respondent Christner, was incorrect and that the teachers had actually been serving in the English tenure area.  Therefore, at a regularly scheduled meeting of respondent board on or about June 7, 2012, respondent Christner’s tenure area and seniority credit were adjusted accordingly; at that time, it was determined that respondent Christner was to be credited with four years of seniority in the English tenure area.

At its April 25, 2013 meeting, respondent board voted to abolish five full-time teaching positions in the Elementary Education tenure area, effective June 30, 2013.  Petitioner was determined to be one of the least senior teachers in that tenure area and, consequently, by letter dated April 29, 2013, petitioner was notified that her position was being abolished effective July 1, 2013.[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on August 12, 2013.

Petitioner asserts that the district improperly calculated her seniority credit and that, as a result of the improper calculation, she was improperly excessed.  Petitioner argues that she is not the least senior teacher in the English tenure area and, therefore, should not have been excessed.  Petitioner seeks reinstatement to her position in the district as well as a determination that she has accrued three years of service in the English tenure area.  Petitioner further asserts that respondents’ memorandum of law should be rejected because it was not submitted within the time prescribed by 8 NYCRR §276.4(a).

Respondents assert that the appeal is untimely and must be dismissed for failure to join a necessary party.  Respondents further contend that their actions in regard to petitioner’s excessing were legally proper and were, in fact, required by the Commissioner’s decision in De Oliviera.

I must first address the procedural issues.  Under section 276.4(a) of the Commissioner’s regulations (8 NYCRR §276.4[a]), a respondent must serve its memorandum of law within 30 days of the service of the answer or 20 days after service of the reply, whichever is later.  In this appeal, the answer was personally served on August 5, 2013 and the reply was served by mail on August 15, 2013.  Thus, allowing the usual five days for mailing, excluding Sundays and holidays, respondents’ memorandum of law was due on September 10, 2013.  Respondents’ memorandum of law was not served and filed until September 13, 2013, with a request that the Commissioner accept the late filing pursuant to §276.4(a).  The Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]).  The only excuse offered for the late filing is a law office error in calendaring the due date, and respondents’ attorney conceded in a letter to my Office of Counsel dated September 16, 2013 that the Commissioner was made aware in the underlying papers of all relevant facts and applicable law.  Under these circumstances, I decline to permit the late filing and have not considered respondents’ late memorandum of law (see Appeal of Cook, 47 Ed Dept Rep 402, Decision No. 15,736).

Respondents contend that the appeal is untimely as it was not commenced within 30 days of the board action terminating petitioner’s employment.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  In cases in which the teacher claims that his or her services have been discontinued in violation of Education Law §§2510(2) and 3013(2) because he or she is not the least senior teacher in the tenure area of the position, the 30-day time period for commencing an appeal under Education Law §310 begins on the effective date of the abolition (see e.g. Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582; Matter of Boykin, 15 id. 348, Decision No. 9,204; Matter of Elkins, 14 id. 193, Decision No. 8,934).  In this case, the board took action to abolish the positions in the Elementary Education tenure area on April 25, 2013, and the effective date of such action was July 1, 2013.  Therefore, petitioner’s appeal challenging the abolition of her position is timely as it was commenced on July 30, 2013, within 30 days of the effective date of the abolition. 

Nevertheless, the appeal must be dismissed on other procedural grounds.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

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).

The record indicates that petitioner did not personally serve respondent Christner.  Petitioner attempted to effect service upon respondent Christner on July 30, 2013 by serving papers upon a “person of suitable age and discretion.”  The affidavit of service, however, fails to demonstrate that petitioner made any “diligent search” before resorting to this method of substitute service (8 NYCRR §275.8[a]; Appeal of Sudano, 56 Ed Dept Rep, Decision No. 17,078; Appeal of Boni, 41 id. 214, Decision No. 14,666, judgement granted dismissing petition to review sub nom. Boni, et al. v. Mills, et al., Sup Ct., Albany County, Special Term, Bradley, J., January 7, 2003).  In fact, the affidavit of service does not detail any prior attempts; rather, petitioner summarily states in her reply that two trips to respondent Christner’s home were made and asserts, upon information and belief, that the process server was informed on the first attempt that respondent Christner was on vacation.  She further asserts that a second attempt was made to see if she had returned from vacation and because the statute of limitations was near, service upon an individual of suitable age and discretion should be deemed sufficient.  

On this record, I cannot find that petitioner has proven that her two attempts at service constitute a diligent effort to find respondent Christner, where petitioner has not provided any evidence to support her assertion in her reply, made upon information and belief, that the process server was told that Christner was on vacation and there is no evidence in the record concerning how much time elapsed between the first and second attempts.  Absent evidence of diligent efforts to effect service upon respondent Christner, service upon an individual of suitable age and discretion is ineffectual and the appeal must be dismissed as to respondent Christner for improper service (Appeal of Sudano, 56 Ed Dept Rep, Decision No. 17,078).

If I were to accept petitioner’s argument that she is entitled to a position in the English tenure area, and find in petitioner’s favor, the employment rights of respondent Christner would be adversely affected.  Under these circumstances, she is a necessary party and should have been joined and served as such (Appeal of Sudano, 56 Ed Dept Rep, Decision No. 17,078; Appeal of Nolett, 48 id. 259, Decision No. 15,852; Appeal of Johnson, 46 id. 432, Decision No. 15,555; Appeal of Fife, 46 id. 361, Decision No. 15,533).  Therefore, 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.

END OF FILE