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Decision No. 13,294

Appeal of MIRIAM MYERS from action of the Board of Education of the Wyandanch Union Free School District regarding the appointment of a district treasurer.

Decision No. 13,294

(December 1, 1994)

Kevin A. Seaman, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Wyandanch Union Free School District ("respondent") to reappoint her as its district treasurer. The appeal must be dismissed.

Petitioner had served as respondent's district treasurer since July 1990. At its reorganization meeting held on July 6, 1994, respondent board appointed Robert Cox as its treasurer instead of petitioner. Petitioner commenced this appeal on August 12, 1994.

Petitioner contends that she was entitled to be reappointed as the district treasurer because she was not notified that there was another candidate for the position and she is not aware of any dissatisfaction with her job performance. Respondent maintains that its appointment of Mr. Cox was proper. Respondent also contends that this appeal must be dismissed as untimely and for failure to join a necessary party.

Before reviewing the merits, it is necessary to address two procedural issues. First, respondent contends that this appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). Respondent's decision not to reappoint petitioner was made on July 6, 1994. This appeal was commenced on August 12, 1994. However, in view of the fact that the record does not indicate when petitioner received notice of respondent's action, it has not been shown that this appeal was instituted in an untimely manner.

Respondent also maintains that this appeal must be dismissed for failure to join a necessary party. An individual whose rights would be adversely affected by a determination of an appeal in favor of the petitioner must be joined as a necessary party (Appeal of Bonanno, 33 Ed Dept Rep 610; Appeal of Chaney, 33 id. 12; Appeal of Basile, 32 id. 330). Petitioner alleges that she should have been appointed the district treasurer rather than Mr. Cox. If petitioner prevails, Mr. Cox's appointment would be voided. Therefore, the appeal must be dismissed for failure to join Mr. Cox as a necessary party.

The appeal must also be dismissed on the merits. Petitioner contends she was entitled to be reappointed district treasurer because she was not notified that Mr. Cox was a candidate for the position and because she was not told that respondent was dissatisfied with her job performance. In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Lemley, 33 Ed Dept Rep 706; Appeal of Cauley, 33 id. 359; Appeal of Singh, 30 id. 284). Petitioner offers no legal basis to support her assertion that she is entitled to reappointment as district treasurer. Moreover, Education Law '2130(4) provides that the district treasurer "shall hold office during the pleasure of the board." Pursuant to that provision, a board of education has the right to discontinue the services of its treasurer at any time (Matter of Probeck, 58 St Dept Rep 470). Accordingly, petitioner's request for reappointment is denied.

THE APPEAL IS DISMISSED.

END OF FILE