Appeal of DEBORAH COOPER from action of the Board of Education of the Hempstead Union Free School District, Superintendent Dr. Nathaniel Clay and board members Charles Renfroe, Dianne Hamilton, Dr. Terry Grant, Gladys Rivera and Ralph Schneider regarding an appointment.

Decision No. 15,708

(January 14, 2008)

Law Offices of Louis D. Stober, Jr., L.L.C., attorneys for petitioner, Louis D. Stober, Jr., Esq., of counsel

Guercio & Guercio, attorneys for respondents, Christopher J. Guercio, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Hempstead Union Free School District (“board”), Superintendent Dr. Nathaniel Clay, and individual board members Charles Renfroe, Dianne Hamilton, Dr. Terry Grant, Gladys Rivera and Ralph Schneider (collectively “respondents”) to appoint her to a Coordinator of Student Support Services position while she was on a preferred eligible list.  The appeal must be dismissed.

Petitioner was hired in December 1998 as the district’s Coordinator of Special Education.  While petitioner claims that she was granted tenure in this position in April 2001, respondents maintain that tenure was not granted until June 28, 2002.

During the 2005-2006 and 2006-2007 school years, petitioner was placed on “special assignment” as assistant principal of an elementary school in the district.  While on special assignment, petitioner maintained her tenured position as Coordinator of Special Education.

Respondents reorganized the Department of Pupil Personnel during the 2006-2007 school year, creating three new Coordinator of Student Support Services positions:  Special Education Direct Instruction, Guidance & Specialized Committee Services, and Health and Allied Services.  In August 2006, Djuana Wilson was appointed to the new Coordinator of Student Support Services - Special Education Direct Instruction (“Special Education Direct Instruction”) position.

At its May 8, 2007 meeting, the board voted to excess petitioner’s position, effective June 30, 2007.  Petitioner was then placed on a preferred eligible list.  This appeal ensued.

Petitioner argues that the duties of the newly-created Special Education Direct Instruction position are similar to those she performed as Coordinator of Special Education and that she is therefore entitled to the new position pursuant to the Education Law.  Petitioner also claims that respondents violated Education Law §3020-a in terminating her “without charges being preferred.”

Respondents argue that the appeal must be dismissed for petitioner’s failure to join Djuana Wilson as a necessary party.  Respondents also maintain that petitioner has not met her burden of proving that she is entitled to the new position because she has not established that it is legally similar to the abolished position as required by Education Law §3013(1).  Finally, respondents claim that Dr. Terry Grant is not a proper party to this appeal.

I will first address the procedural issues.  The superintendent submitted an affidavit stating, “Dr. Grant was no longer on the Board of Education at the time of any of the events which gave rise to the instant Appeal.”  Petitioner has introduced no evidence to the contrary.  Therefore, the appeal must be dismissed as against Dr. Terry Grant.

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).  Petitioner requests that respondents appoint her to the Special Education Direct Instruction position currently held by Ms. Wilson.  Since petitioner’s request for appointment would directly affect Ms. Wilson’s employment status, she is a necessary party to this appeal.

Petitioner commenced this appeal by service on respondents on July 27, 2007.  However, she did not seek to amend her petition to join Ms. Wilson until she filed her reply with my Office of Counsel on September 28, 2007, two months after commencement of this appeal.  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 O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Section 275.1 of the Commissioner’s regulations provides that after an appeal is commenced, “no party shall be joined ... except by leave or direction of the Commissioner of Education.”  Because petitioner offers no good reason for her delay, her attempt to join Ms. Wilson is untimely and the appeal must be dismissed for failure to join a necessary party (Appeal of Gilmore and Jordon-Thompson, 42 Ed Dept Rep 334, Decision No. 14,874; Appeal of Gargan, 40 id. 465, Decision No. 14,528; Appeal of Brousseau, 39 id. 397, Decision No. 14,271).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Education Law provides, in pertinent part:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled  (Education Law §3013[3][a]).

In this case, respondents abolished petitioner’s position effective June 30, 2007.  Therefore, under the Education Law, petitioner is entitled to appointment only to a position that existed on June 30, 2007 or thereafter.  Because Ms. Wilson’s position was created and filled by August 2006, petitioner is not entitled to appointment thereto.

Finally, because petitioner provides no evidence to support her assertion that respondents violated Education Law §3020-a, this claim must be dismissed.

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

THE APPEAL IS DISMISSED.

END OF FILE