Appeal of MINNIE LIVINGSTON from action of the Board of Education of the Roosevelt Union Free School District and Diane Hairston regarding a personnel matter.

Decision No. 17,087

(May 23, 2017)

Wolin & Wolin, attorneys for petitioner, Alan E. Wolin, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondents, Anthony J. Fasano,Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Roosevelt Union Free School District (“respondent board”) to appoint Diane Hairston (“respondent Hairston”) to a leave replacement position.  The appeal must be dismissed.

Petitioner is a guidance counselor who is currently employed by the district in the high school.  On or about August 30, 2016, petitioner had a “medical episode,” as a result of which petitioner indicates that she has been unable to attend work.  The record indicates that, as of September 21, 2016, petitioner had called in sick every day from the start of the school year.  On or about September 21, 2016, petitioner became aware of a job posting for a leave replacement for her position.  The record indicates that, at its September 22, 2016 meeting, respondent board appointed respondent Hairston to the position of leave replacement for petitioner’s position, effective September 26, 2016.  This appeal ensued.

Petitioner contends that the district should not have appointed respondent Hairston to the position of leave replacement as petitioner never applied for an extended leave.  Petitioner seeks the rescission of respondent Hairston’s position and protection of her rights.

Respondent board contends that its actions were, in all respects, proper and were not arbitrary and capricious.  Respondent raises a number of procedural defenses, including untimeliness, failure to properly serve respondent Hairston, failure to join a necessary party, and prematurity.

I will first address the procedural issues.  The appeal must be dismissed for failure to effectuate personal service on respondent Hairston.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

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).

The record indicates that petitioner failed to properly serve the individual respondent.  Petitioner attempted to effect service upon respondent Hairston solely by serving papers upon a “person of suitable age and discretion.”  The affidavits of service, however, fail to demonstrate that petitioner made any diligent attempt to serve respondent Hairston personally before resorting to this method of substitute service (Appeal of Cook, et al., 54 Ed Dept Rep, Decision No. 16,759; Appeal of Boni, 41 id. 214, Decision No. 14,666; judgement granted dismissing petition to review sub nom. Boni, et al. v. Mills, et al., Sup. Ct., Albany Co., Special Term; Bradley, J.; January 7, 2003).  Absent evidence of diligent efforts to effect service upon respondent Hairston, substitute service upon a person of suitable age and discretion is ineffectual.  Although §275.8(a) of the Commissioner’s regulations permits service of a petition on a person of suitable age and discretion at the respondent’s residence where the respondent cannot be found, there is no authority for other forms of alternative service, absent express authorization from the Commissioner (Appeal of Boni, 41 Ed Dept Rep 214, Decision No. 14,666; judgement granted dismissing petition to review sub nom. Boni, et al. v. Mills, et al., Sup. Ct., Albany Co., Special Term; Bradley, J.; January 7, 2003; Application of Balen, 40 id. 250, Decision No. 14,474; Appeal of Ponella, 38 id. 610, Decision No. 14,103).  Since the Commissioner did not authorize alternative service, and no personal service was made upon respondent Hairston, the appeal must be dismissed as to her for improper service, and therefore she has not been properly joined as a party to this appeal (Appeal of Boni, 41 Ed Dept Rep 214, Decision No. 14,666; judgement granted dismissing petition to review sub nom. Boni, et al. v. Mills, et al., Sup. Ct., Albany Co., Special Term; Bradley, J.; January 7, 2003; Application of Grinnell, 37 id. 504, Decision No. 13,914).  Were petitioner to prevail, respondent Hairston would be adversely affected as the petition seeks the rescission of her replacement leave appointment.  Therefore, she is a necessary party and petitioner’s failure to join her as a respondent warrants dismissal of the appeal (Appeal of Mitchell, 51 Ed Dept Rep, Decision No. 16,344; Appeal of Murray, 48 id. 517, Decision No. 15,934).

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

THE APPEAL IS DISMISSED.

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