Appeal of JOHNNY G. DESTINO from action of the Board of Education of the City School District of the City of Niagara Falls, Superintendent Cynthia A. Bianco and School Attorney Angelo Massaro regarding an appointment.

Decision No. 16,461

(March 29, 2013)

Roscetti & DeCastro, P.C., attorneys for respondents, James C. Roscetti, Esq., of counsel

KING, JR., Commissioner.--Petitioner, a member of the Board of Education of the City School District of the City of Niagara Falls (“respondent” or “board”), appeals the board’s appointment of Maria A. Massaro (“Massaro”) to the position of Administrator for Human Resources (“Human Resources Administrator”). The appeal must be sustained in part.

In April 2010, Philip Mohr (“Mohr”), then the district’s Human Resources Administrator, announced his retirement, effective August 28, 2010, whereupon the district commenced a process to find a successor. A hiring committee was formed to interview applicants who responded to advertisements for the position and eventually recommended to the superintendent that Massaro be offered the position. On October 28, 2010, based on the superintendent’s recommendation, the board voted 6 to 2 to appoint Massaro to the position, effective November 1,2010. Petitioner is one of the board members who voted against Massaro’s appointment. This appeal ensued. Petitioner’s request for interim relief was denied on December 29, 2010.

Petitioner contends that Massaro is unqualified to hold the Human Resources Administrator’s position because she lacks New York State certification as a School District Administrator (“SDA”). He asserts that, without prior approval from the board, the superintendent improperly modified the minimum qualifications for the position to eliminate the SDA certificate and Master’s degree requirements, that such modifications violate the Education Law, and that the superintendent improperly tailored the modified qualifications to favor Massaro. In addition, petitioner contends that there was an appearance of, or actual, conflict of interest because Angelo Massaro, the board’s general counsel, is Massaro’s father, and is responsible for drafting and reviewing all school contracts. Petitioner seeks determinations that the superintendent acted without authority by unilaterally modifying the job qualifications, that Massaro is ineligible and unqualified for the position, and that just cause exists to terminate the employment contract of Angelo Massaro. He also seeks an order voiding Massaro’s appointment.

Respondents deny any improprieties, conflicts or violations of Education Law, assert that the job search and Massaro’s appointment were conducted transparently and properly, and that Massaro is fully qualified for the position. They assert that the appeal must be dismissed because petitioner lacks standing, and because the petition is untimely, fails to state a claim upon which relief maybe granted, fails to join necessary parties and contains frivolous claims. In addition, respondents assert that tothe extent that Angelo Massaro may have been properly joined as a party, the Commissioner lacks jurisdiction over him.

I must first address several procedural issues. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed DeptRep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Strade, et al., 48 Ed Dept Rep 73,Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744; Appeal of Houdek, 47 id. 415, Decision No.15,740).

Respondents correctly assert that because petitioner was not a candidate for the Human Resources Administrator’s position and thus is not personally aggrieved by Massaro’s appointment, he would lack standing on that basis (Appeal of Erickson, 47 Ed Dept Rep 261, Decision No. 15,689).Similarly, petitioner would be without standing as either a district resident or board member to seek review of personnel actions of the board (Appeal of Lander, et al.,42 Ed Dept Rep 201, Decision No. 14,822). However, in this case, petitioner, a district resident, is challenging an alleged illegal expenditure of funds by the board by claiming that the board appointed an uncertified individual to a position requiring certification (see e.g., Education Law §§3009; 3010). Accordingly, I decline to dismiss the appeal for lack of standing (see Appeal of Allard, 43 EdDept Rep 167, Decision No. 14,957).

An appeal to the Commissioner must be commenced within30 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914;Appeal of Williams, 48 id. 343, Decision No. 15,879).

Respondents contend that the appeal must be dismissed as untimely because petitioner commenced the appeal on November 29, 2010, more than 30 days after September 13,2010 when he admits knowing that the Administrator’s position, with the modified qualifications, was posted on the school’s email system; more than 30 days after October14, 2010 when he addressed the board about the qualifications; and more than 30 days after October 18,2010 when he emailed Mohr about the qualifications.

However, as noted above, the gravamen of petitioner’s appeal is the board’s alleged improper appointment of Massaro on October 28, 2010, 30 days from which would have been Saturday, November 27, 2010. When the last day for service of a petition falls on a Saturday, service may be made on the following Monday (8 NYCRR §275.8[a]). Accordingly, I find that petitioner’s appeal, commenced on Monday, November 29, 2010, is timely. I would decline to dismiss the appeal as untimely in any event, because the unlawful employment of an unqualified individual is a continuing wrong (Appeal of Kippen, 48 Ed Dept Rep 469,Decision No. 15,919).

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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). 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 Murray, 48 Ed Dept Rep 517, Decision No.15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917;Appeal of Williams, 48 id. 343, Decision No. 15,879).

Petitioner captioned his petition as follows:

In the Matter of Johnny G. Destino, from action of the Board of Education of the Niagara Falls City School District regarding the appointment of Maria A. Massaro, daughter of Niagara Falls City School District Attorney Angelo Massaro, Esq., upon the recommendation of Superintendent Cynthia A. Bianco, to the position of Administrator for Human Resources.

The recitation in the caption that Angelo Massaro is the father of Massaro is descriptive and does not provide him with sufficient notice that he should respond to the petition as a respondent. Accordingly, although petitioner served Angelo Massaro, he is not clearly named as a respondent in the caption of the petition and the appeal must be dismissed as to him (see e.g., Appeal of Foshee, 38Ed Dept Rep 346, Decision No. 14,051). In any event, I note that his alleged actions are not actionable in the context of an Education Law §310 appeal because he is neither a district officer nor employee (Appeal of Philips,41 Ed Dept Rep 10, Decision No. 14,595; Matter of McGinley,23 id. 350, Decision No. 11,244).

Similarly, the caption’s recitation of the fact that the superintendent provided a recommendation for Massaro is procedural (see Education Law §2509[1][b]) and does not provide her with sufficient notice that she should respond to the petition as a respondent. Hence, although petitioner served the superintendent, she is not clearly named as a respondent in the caption of the petition and the appeal must also be dismissed as to her. Accordingly, to the extent petitioner alleges that the superintendent acted ultra vires in modifying the qualifications of the position, I need not address that issue since she is not properly joined as a party to the appeal.

Respondents also argue that the appeal must be dismissed for petitioner’s failure to join the individual members of the board because an adverse ruling in petitioner’s favor would deprive each member of his or her right to determine individually who to appoint as Administrator. I find that petitioner’s service of the petition on the superintendent is sufficient to confer jurisdiction over the board pursuant to §275.8(a) of the Commissioner’s regulations because, in actuality, petitioner is seeking relief not from action of individual board members, but rather from action of the board of education as an entity with the authority to appoint an administrator or other employee (Appeal of Ouimet, 48 Ed Dept Rep 220, Decision No. 15,843; see Education Law §2509[1][b]). Therefore, I find that the board was properly joined.

I turn now to the merits. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). Petitioner contends that the job qualifications were improperly lowered or tailored to favor Massaro. On the record before me, I find that petitioner has failed to meet his burden of proof.

Mohr served as Human Resources Administrator commencing September 2004 and was instrumental in the search for his successor. By email dated October 18, 2010, he transmitted to the board the following email:

1. The attached job description was adopted by the Municipal Civil Service Commission (MCSC) on 3/22/07.
2. The posting for my successor (dated September 13, 2010) reflected the attached job description. No changes were made to the job description. We did extend the minimum qualifications to include candidates with a Bachelor’s degree and appropriate HR experiences. This would allow candidates for the position to come through either the certificated pathway (School Administrators with a Certificate) or the classified pathway (those candidates who would fall under Civil Service review).
3. I consulted with the [MCSC] prior to posting the Administrator for Human resources position ... just to be sure there wouldn’t be any problems later on. 
4. The Civil Service Commission oversees all of what we do in the District regarding Civil Service positions. They receive a copy of the personnel report each month and review it to ensure compliance with all local and state regulations.

The minimum qualifications attached to the 2007 job description were: “Graduation from a regionally accredited or New York State registered college or university with a Master’s degree and New York State permanent [SDA] certification and three (3) years experience in school administration or human resources.”

The expanded qualifications for the September 2010 job posting were, in pertinent part:

A New York State permanent certification as a School District Administrator (SDA), School Administration and Supervisor (SAS), or New York Sate certification as a School District Leader (SDL) and three (3)years experience in school administration or human resources.

-or-

Graduation from a regionally or New York State registered college or university with a Bachelor’s Degree including coursework in personnel management, labor relations, law or education and three (3) years experience in human resources management. Additional education beyond a Bachelor’s Degree can be substituted for the required three (3) years experience. Experiences in the areas of labor relations, policy compliance, employee benefits and staff development may be used to fulfill the human resources requirement.

The superintendent avers that the minimum qualifications were extended to broaden the pool of applicants and that Massaro was the best candidate. She states that pursuant to Education Law §2509, she was required to recommend to the board a candidate for the Human Resources Administrator’s position, and that prior to doing so, she discussed her intention with the board at an executive session on or about October 14, 2010, but that ultimately, the board determined the appointment. Similarly, Mohr avers that “it was decided that the position should be opened to both certificated and classified individuals so as to broaden the net of potential applicants for the position,” and that Massaro was interviewed and recommended by the committee as the most qualified candidate. Based on the record before me, I find that petitioner has failed to meet his burden of proving that the qualifications were improperly lowered or tailored to favor Massaro.

The position of a human resources administrator, however, is not among the positions specifically listed in the certifications to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching or supervisory staff of a school district (see Appeal of Thomas, 34 Ed Dept Rep 181, Decision No. 13,275;In the Matter of the Certifications of Classes of Positions of the Teaching and Supervisory Staffs of School Districts, Boards of Cooperative Educational Services and County Vocational Education and Extension Boards, dated April 5,1962; June 28, 1962; January 13, 1971; July 9, 1971; April30, 2009) (“Certifications 1 through 5”). Accordingly, it would only be considered a pedagogical position for which certification is required if it involved “the function of administration of teaching, i.e., supervision and direction of supervisors, principals and all other members of the teaching and supervisory staffs.” (Certification 1, dated April 5, 1962, supra).

With one limited exception, the duties of respondent’s Human Resources Administrator do not involve supervision and direction of members of the teaching and supervisory staffs. Therefore, the position is not one whose routine duties squarely fall within the positions certified as pedagogical in Certification  [1].

I find, however, that respondent impermissibly included one pedagogical duty as part of the Human Resources Administrator position that would require an incumbent to possess certification pursuant to Part 80 of the Commissioner’s regulations.

As noted in Mohr’s email, the job duties for Human Resources Administrator remained the same despite the change in qualifications. The job description lists 21typical work activities, one of which is “[a]cts as chief school officer in the absence of the Superintendent and

Deputy Superintendent of schools.”  [2] Although respondent disputes that this is a “primary” responsibility of the position, nonetheless, to the extent that Massaro could be required to act as chief school officer in the district in the absence of the superintendent or deputy superintendent and carry out the duties of those positions at any time, she would need to be properly certified (see Education Law §3003(1); 8 NYCRR §80-2.4). Since she is not a certified individual, she may not be assigned as acting superintendent. Such position clearly involves supervision and direction of pedagogical personnel.

However, in light of the facts that this was only one of 21 listed job activities, was not a routine function of the position and would only apply as a contingency in the event of the absence of the superintendent and deputy superintendent, I decline to annul Massaro’s appointment. I find that the proper remedy on these facts is to order respondent to remove acting as chief school officer in the absence of the superintendent and deputy superintendent from Massaro’s duties as Human Services Administrator and refrain from assigning her to serve as chief school officer unless she obtains the appropriate school leader certification.

One administrative matter remains. The board requests a certificate of good faith “as to the individuals” pursuant to Education Law §3811(1). Pursuant to that statute, such certification is solely for the purpose of authorizing the board to defend and indemnify school district officers for legal fees and expenses incurred in defending a proceeding brought against them arising out of the exercise of powers or performance of their duties under the Education Law. Petitioner here challenges only the actions of the board and the superintendent. It is appropriate to issue such certification unless it is established on the record that the requesting individuals acted in bad faith (Appeal of Kushner, 49 Ed Dept Rep 263,Decision No. 16,020; Appeal of Lilly, 47 id. 268, Decision No. 15,692; Application of Berman, 46 id. 378, Decision No.15,537). On the record before me, I will issue the requested certification for the limited purpose of Education Law §3811(1).

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

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent board remove acting as chief school officer in the absence of the superintendent and deputy superintendent of schools from the job duties of Maria A. Massaro in the position of the district’s Administrator for Human Resources and refrain from assigning her to serve as chief school officer unless she obtains the appropriate school leader certification.

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[1]   Nine applications were received after posting employment notices in two newspapers, on the district website and email, with the Orleans-Niagara Board of Cooperative Educational Services (“BOCES”) administration for human resources and with an association for personnel administration. Massaro had been employed with the district since July 1, 1999 in various capacities, including attorney, in-house counsel, member of the administrative staff responsible for district policies and health care insurance, hearing officer and district negotiator in union negotiations.

[2]   This duty is also listed in Schedule A to the Employment Agreement attached for approval to the minutes of the October 28, 2010 board meeting in Exhibit A to the petition.