Appeal of WILLIAM KING MOSS III from action of the Board of Education of the Brentwood Union Free School District regarding a staff appointment.

Decision No. 17,409

(June 14, 2018)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Candace J. Gomez, Esq., of counsel   

ELIA, Commissioner.--Petitioner appeals from action of the Board of Education of the Brentwood Union Free School District (“respondent”) regarding the appointment of an individual to the position of chief custodian (the “chief custodian”).  The appeal must be dismissed.

Petitioner contends that the chief custodian, appointed by respondent on February 15, 2018, had “a disciplinary history” that was known to respondent which should have disqualified him for this position.  Petitioner further alleges that the chief custodian’s “disciplinary record may include behaviors that could be considered criminal in nature.”  Petitioner also complains that the appointment of the chief custodian to a full-time position is an “abuse of tax-payer funds.” 

Petitioner also asserts that, on March 15, 2018, the superintendent and respondent’s president stated that “they do not typically review the personnel folders for candidates being recommended for supervisory roles in the school district.”  For relief, petitioner seeks the individual’s removal from his position as chief custodian, and an order directing the district to “order a hiring process that includes both the promotional and open competitive candidates from the civil service lists....”

Respondent contends that the appeal must be dismissed for failure to join a necessary party, the chief custodian.  Respondent further argues that the appeal must be dismissed for lack of standing, as petitioner lacks standing to challenge employment decisions concerning district employees.  Finally, respondent submits that petitioner has failed to meet his burden of proving any of the allegations in the petition.

The appeal must be dismissed for failure to join the chief custodian.  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Here, petitioner seeks an order removing the chief custodian from his position.  The chief custodian clearly would be adversely impacted by such an order (see Appeal of Trojahn, 57 Ed Dept Rep, Decision No. 17,360; Application of Danin, 32 id. 20, Decision No. 12,744).  Accordingly, the chief custodian is a necessary party and the appeal must be dismissed for failure to join him as a party.

One administrative matter remains.  Respondent requests that I certify that “all board members” and the superintendent acted in good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify certain individuals for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties.  It is appropriate to issue such certification unless it is established on the record that the requesting respondent acted in bad faith (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Application of Mazile, 45 id. 378, Decision No. 15,356). 

Here, it is unnecessary to certify that respondent appeared to have acted in good faith because respondent’s costs in defending this proceeding are, by operation of statute, a cost upon the district, and no claims are interposed against any individual board members.  Education Law §3811 provides, in relevant part, that:

Whenever the trustees or board of education of any school district ... [shall] defend any action brought against them ...  all their costs and reasonable expenses, as well as all costs and damages adjudged against them, shall be a district charge and shall be levied by tax upon the district.

Therefore, because respondent’s costs in defending an action or proceeding against the board are deemed a cost upon the district by Education Law §3811 and no individual board members are a party to this appeal, I need not certify that respondent appeared to have acted in good faith.  Similarly, I need not grant respondent’s request with respect to the superintendent, as he is not a party to the instant proceeding and, thus, is not obligated to defend himself within the meaning of Education Law §3811.

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

THE APPEAL IS DISMISSED.

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