Decision No. 13,568

(March 12, 1996)

Peter N. Littman, Esq., attorney for petitioner

Bond, Schoeneck & King, LLP, attorneys for respondent, R. Daniel Bordoni, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Ithaca City School District ("respondent") to hire her as interim high school vice principal. The appeal must be dismissed.

Petitioner is a certified public school teacher and holds certification as an administrator/supervisor. On December 19, 1994, respondent's vice principal resigned effective January 18, 1995. Because respondent's hiring processes are highly participatory and time consuming, respondent anticipated that it would not be able to fill the vacant position permanently until June 1995, so it determined that the appointment of an interim vice principal was necessary.

Respondent's search for an interim vice principal was delayed because its initial candidate for the position was rejected after a reference check. Respondent then determined that no certified and qualified candidates existed to fill the interim position, so it contacted the State Education Department regarding the temporary licensing of a veteran teacher, Frank Slattery, who did not hold an administrator's certificate. The Department granted Mr. Slattery a temporary administrator's license on March 24, 1995, effective from January 1, 1995 to August 31, 1995. On March 1, 1995, respondent received a letter from petitioner indicating that she was aware that respondent had hired an uncertified individual for the position. Correspondence ensued between the parties concerning the position. This appeal was commenced on June 22, 1995.

Petitioner alleges that she is a certified school administrator and should be appointed to the interim vice principal position. She also alleges that respondent failed to consider her application for the permanent position of vice principal. She claims that respondent has shown racial bias against her because she is African American. Respondent contends that its actions regarding the interim vice principal position were proper, and that petitioner was considered for the permanent vice principal position but was rejected by the screening committee. Respondent also denies any racial bias against petitioner. Respondent raises several procedural defenses, including failure to state a claim upon which relief can be granted, that the appeal is untimely and that petitioner has failed to join a necessary party.

I will address two of the procedural issues raised by respondent. Respondent contends that the appeal should be dismissed for failure to join a necessary party, Mr. Frank Slattery. Petitioner claims that she is entitled to the position held by him. Since a decision on the merits would involve the rights of Mr. Slattery, he is a necessary party to this proceeding and, therefore, should have been joined as a party (Appeal of Chrisfield, 33 Ed Dept Rep 463; Appeal of Reed, et al., 33 id. 216; Appeal of Kalinowski, 32 Ed Dept Rep 476; Appeal of Healy, 29 id. 391). Because Mr. Slattery has not been joined as a party in this appeal, it must be dismissed.

Respondent also contends that the appeal is untimely since petitioner was aware of Mr. Slattery's appointment in March or April 1995, yet this appeal was not commenced until June 22, 1995. The Commissioner's regulations require that an appeal be instituted within 30 days of the making of the decision or the performance of the act complained of, except for good cause shown (8 NYCRR 275.16). Although petitioner claims that her delay in filing this appeal was due to respondent's concealment of the facts and her inability to obtain information regarding the interim vice principal position, I do not find that this delay was for good cause. It is clear from correspondence contained in the record that petitioner was aware of the vacant position several months before she filed this appeal. The petition, therefore, must be dismissed as untimely.

THE APPEAL IS DISMISSED.

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