Appeal of T.S. from actions of Barbara Topiol, Principal of Wampus Elementary School in the Byram Hills Central School District, regarding a report of educational neglect.

Kehl, Katzive & Simon, LLP, attorneys for respondent, Jeffrey A. Kehl, Esq., of counsel

Decision No. 16,038

(March 29, 2010)

STEINER, Commissioner.--Petitioner seeks the suspension or removal of Barbara Topiol (“respondent”), Principal of Wampus Elementary School (“Wampus”) in the Byram Hills Central School District (“district”), and asks that I direct the district to adopt a policy regarding mandated reporting of educational neglect.  The appeal must be dismissed.

During the 2008-2009 school year, petitioner’s son was a fifth grader at Wampus.  Due to his numerous absences, regular tardiness and other concerns, on May 14, 2009 two Wampus employees filed an educational neglect report with Child Protective Services (“CPS”).  Although respondent did not file the report, she was consulted by the employees and she concurred with their decision.  This appeal ensued.

Petitioner alleges that respondent did not comply with the district’s attendance policy and that she allowed false information to be provided to CPS.  Petitioner requests that I find that respondent committed acts of wilful misconduct and that I suspend or terminate her employment.  Petitioner also requests that I mandate the district to adopt a policy regarding mandated reporting of educational neglect.

Respondent argues that the petition fails to state a cause of action, that I do not have the power to remove or suspend a school principal and that the district already has compliant regulations and training programs regarding the mandated reporting of suspected abuse and/or neglect under New York State’s Social Services Law.

The appeal must 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).  Petitioner seeks to have the district adopt a policy regarding mandated reporting of educational neglect.  This relief can only be provided by action of the board of education (Education Law §§1709 and 1804).  I therefore find that the district’s board of education is a necessary party to this appeal, and since it was not joined as such, the appeal must be dismissed.

Additionally, petitioner requests that I suspend or remove respondent.  Education Law §306 authorizes the Commissioner to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer.  A principal is not a “school officer” subject to removal under Education Law §306 (Appeal of a Student with a Disability, 48 Ed Dept Rep 436, Decision No. 15,907;  Application of V.M., 46 id. 531, Decision No. 15,584; Appeal of a Student with a Disability, 36 id. 181, Decision No. 13,694).  Therefore, I do not have the authority to remove respondent.  Nor do I have the authority to suspend her (seeAppeal of C.R., 45 Ed Dept Rep 303, Decision No. 15,330; Appeal of J.K., 41 id. 337, Decision No. 14,705; Appeal of D.H., 41 id. 142, Decision No. 14,640).  Accordingly, these claims must be dismissed.

Finally, the appeal must be dismissed for lack of jurisdiction.  The provisions of Article 6 of Title 6 of the Social Services Law (§§411-428) require mandatory reporting by school officials of suspected cases of child abuse or neglect, which by definition includes educational neglect.  The relief petitioner requests would be based on a finding that respondent’s concurrence of the report to CPS somehow constitutes misconduct.  However, the Commissioner of Education has no authority to review whether such reports are appropriately made in accordance with the Social Services Law (Appeal of Stephen and Roseanne W., 39 Ed Dept Rep 808, Decision No. 14,388).

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

THE APPEAL IS DISMISSED.

END OF FILE.