Appeal of SAMUEL BURNETT from actions of the Board of Education of the Wyandanch Union Free School District and Superintendent Sherman Roberts regarding board practices.

Decision No. 15,676

(October 17, 2007)

Conway, Farrell, Curtin & Kelly, P.C., attorneys for respondents, Heather M. Palmore, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals certain practices of the Board of Education of the Wyandanch Union Free School District (“respondent board” or “board”) and its superintendent (collectively “respondents”) and seeks their removal.  The appeal must be dismissed.

Petitioner, a trustee of respondent board, alleges that respondents conspired to violate their obligation to serve the best interests of students and to protect taxpayers’ interests by hiring unqualified personnel and engaging in nepotism.  Among other things, petitioner alleges that respondent board hired as substitutes two unqualified individuals recommended by the superintendent who were members of his church and adopted the then-interim superintendent’s recommendation to appoint as a principal the board president’s wife.  Petitioner contends that several other appointees were either related to a trustee or an administrator, or had some affiliation with the board president or the superintendent, and thus the board violated its fiduciary duties in approving the appointment of these individuals.  Petitioner also alleges several irregularities concerning the board’s appointment of the superintendent and questions the superintendent’s qualifications.  Petitioner contends further that respondent board voted to waive premises-use fees for certain programs affiliated with respondent board members while charging fees for other non-affiliated programs.  I note that several of these allegations were the subject of an earlier appeal (Appeal of Smalls, et al., 46 Ed Dept Rep 246, Dec. No. 15,496).   

Petitioner seeks revocation of the superintendent’s contract with the district and his removal as superintendent, revocation of his certification, and repayment of certain compensation paid to the superintendent.  Petitioner also seeks the removal of respondent board and the rescission of any improper appointments.  Petitioner further requests that the Commissioner oversee the appointment of new trustees and order that the newly appointed trustees stand for election at the end of their respective appointed terms; that the Commissioner recommend the appointment of an interim superintendent and assist in the search for a new superintendent; and that the Commissioner review all appointments or promotions made by respondent board.  He also requests an investigation into the conduct of the English Language Arts (“ELA”) examination at the district’s middle school and any other relief as the Commissioner deems appropriate.

Respondents assert that the petition is untimely except for the allegations related to the hiring of two substitutes on February 28, 2007.  With regard to those claims, respondents assert that petitioner has failed to meet his burden of proof.  They assert further that the appeal is without merit and must be dismissed for failure to join necessary parties.

Petitioner attempts to bring this appeal on behalf of himself, parents, taxpayers and students.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346; Appeal of Ockimey, 44 id. 169, Decision No. 15,136).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346; Appeal of Garmaeva, 43 id. 253, Decision No. 14,988). Petitioner’s pleadings are entirely devoid of any allegations addressing those criteria.  Therefore, petitioner’s request for class status is denied.

The appeal must be dismissed for failure to join necessary parties.  Petitioner requests that I remove the superintendent and all members of respondent board.  In addition, he challenges the appointments of two substitute teachers and numerous other personnel.  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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  The appeal was commenced by service of the petition upon the district clerk.  None of the specified individuals were personally served.  Accordingly, the appeal must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.  However, as I stated in Appeal of Smalls, et al., 46 Ed Dept Rep 246, Dec. No. 15,496, “petitioner has made serious allegations in relation to . . . [the board’s] recruitment and appointment of candidates for professional positions.  Therefore, I urge . . . [the board] to carefully review its policies and procedures to ensure that it complies with all applicable laws and regulations and that its appointment of candidates does not undermine the ability of the school district to properly carry out its responsibilities.”

THE APPEAL IS DISMISSED.

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