Appeal of LAURIE WALKER from action of the Board of Education of the Delhi Central School District regarding personnel decisions.

 

 

(June 28, 2004)

 

NEA/New York, attorneys for petitioner, Janet Axelrod and

Susan Whiteley Fuller, Esqs., of counsel

 

Hogan & Sarzynski, LLP, attorneys for respondent, John Lynch, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the elimination of her position as a certified library media specialist and the hiring of two teaching assistants by the Board of Education of the Delhi Central School District ("respondent").  The appeal must be dismissed.

During the 2002-2003 school year, petitioner was one of two tenured certified library media specialists in respondent"s district.  On June 3, 2003, respondent eliminated her position.  In September 2003, respondent hired two teaching assistants to work in the district"s libraries.  This appeal ensued.

Petitioner alleges that respondent hired the two teaching assistants to perform her duties as a library media specialist, in violation of ""91.2 and 100.4(b)(2)(iii) of the Commissioner"s regulations.  Petitioner requests that I "rescind the unlawful elimination of the library media specialist position" and nullify respondent"s appointment of the two teaching assistants.

Respondent contends that the appeal is untimely and that petitioner failed to join necessary parties, lacks standing and has not demonstrated a clear legal right to the relief requested.

Petitioner"s challenge to respondent"s decision to hire two teaching assistants must be dismissed for failure to name necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Branch, et al., 41 Ed Dept Rep 334, Decision No. 14,704; Appeal of Wheeler, 40 id. 678, Decision No. 14,581; Appeal of Heller, 38 id. 335, Decision No. 14,048).  Such individual must be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Heller, supra).  Since petitioner requests that I nullify the appointments of the two teaching assistants, they are necessary parties.  As such, petitioner was required to name them as respondents and personally serve them with a copy of the petition and notice of petition (8 NYCRR "275.8; Appeal of Heller, supra).  Her failure to do so warrants dismissal of this appeal to the extent that petitioner challenges respondent"s employment of the teaching assistants.

The appeal must be dismissed as untimely to the extent petitioner challenges respondent"s decision to eliminate her position.  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).  Respondent"s superintendent notified petitioner by letter dated June 9, 2003 that her position had been eliminated and employed the teaching assistants as of September 4, 2003.  Petitioner did not commence this appeal until November 4, 2003, well beyond the 30-day period and offers no excuse for the delay.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Section 91.2 of the Commissioner"s regulations establishes a school district"s obligation to employ a certified school library media specialist based on its secondary school enrollment.  Respondent alleges that its secondary school enrollment is 549 students and petitioner provides no proof to the contrary.  Under these circumstances, the regulation requires respondent to employ a certified specialist who devotes at least five school periods each day to school library work, unless equivalent service is provided by an alternative arrangement approved by the Commissioner (8 NYCRR "91.2[d]).  Respondent alleges that it does, in fact, employ a library media specialist who devotes more than five school periods to library work at the secondary school and petitioner presents no proof to the contrary.

Petitioner also alleges that respondent"s employment of the two teaching assistants to work in district libraries violates "100.4(b)(2)(iii) of the Commissioner"s regulations, which provides that [i]n public schools, library and information skills shall be taught by library media specialists and classroom teachers...."  Petitioner provides no proof that the teaching assistants are teaching library and information skills.

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

 

THE APPEAL IS DISMISSED.

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