Appeal of DOUGLAS WILLIAMS from action of the Board of Education of the North Colonie Central School District regarding an employment matter.

Decision No. 15,879

(February 24, 2009)

Girvin & Ferlazzo, PC, attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the North Colonie Central School District (“respondent”) to reinstate Timothy Bonk as its Director of Facilities.  The appeal must be dismissed.

Timothy Bonk is the district’s Director of Facilities.  On February 8, 2008, Mr. Bonk was placed on administrative leave pending the district’s investigation into allegations of misconduct against him.  As a result of the investigation, on May 5, 2008, Mr. Bonk was served with a Notice of Discipline in accordance with Civil Service Law §75.  On June 16, 2008, respondent approved a “last chance” agreement by which Mr. Bonk accepted a suspension in settlement of the Notice of Discipline.  This appeal ensued.

Petitioner objects to Mr. Bonk’s reinstatement.  Petitioner requests that I investigate various matters including the suspension and subsequent reinstatement of Mr. Bonk.  Petitioner also asks that I investigate whether he was the subject of discrimination.

Respondent alleges that petitioner fails to state a claim upon which relief may be granted, that I lack jurisdiction over the appeal, that the petition is untimely and moot and that petitioner failed to join a necessary party.  Respondent contends that Mr. Bonk was legitimately returned to his job.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).

Petitioner challenges a decision made by respondent at a public meeting held on June 16, 2008.  However, the appeal was not commenced until August 6, 2008, more than 50 days later, and petitioner offers no explanation for his delay.  Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed for failure to join a necessary party.  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).

Here, petitioner challenges respondent’s decision to reinstate Mr. Bonk.  Thus, Mr. Bonk’s rights would be adversely affected by a determination in petitioner’s favor.  Petitioner’s failure to name or serve Mr. Bonk as a party to this appeal requires dismissal.

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

THE APPEAL IS DISMISSED.

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