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Decision No. 14,043

Appeal of DIONE GOLDIN from action of John G. Marmillo, Superintendent of the Wappingers Central School District and Ronald L. Warman, president of the Wappingers Congress of Teachers, relating to an employment agreement.

Decision No. 14,043

(December 10, 1998)

Wasserman & Steen, attorneys for respondent Marmillo, Lewis M. Wasserman, Esq., of counsel

James R. Sandner, Esq., attorney for respondent Warman, Kevin H. Harren, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals from an agreement entered into by respondents Marmillo and Warman, respectively, on behalf of the Board of Education of the Wappingers Central School District and the Wappingers Congress of Teachers which released respondent Warman from his teaching duties to conduct union business full-time. The appeal must be dismissed.

The Collective Bargaining Agreement for the period July 1, 1988 through June 30, 1992 between the Wappingers Central School District and the Wappingers Congress of Teachers provides that the Congress president will teach three periods per day if he/she is a secondary teacher and will act as a substitute three days per week if he/she is an elementary teacher. By memorandum of agreement dated February 14, 1995, the parties extended the agreement through June 30, 1998. The agreement was ratified by the Wappingers Congress of Teachers on March 1, 1995 and approved by the board of education on March 7, 1995. By memorandum dated March 8, 1995, entitled "side letter," Superintendent of Schools John G. Marmillo and Wappingers Congress of Teachers President Ronald L. Warman agreed to relieve the president of all teaching duties to conduct Congress business and that the Congress would reimburse the district in accordance with a formula based on 60 percent of the substitute pay rate. The Collective Bargaining Agreement was first published and made available to the public in December 1995. At its February 26, 1996 meeting, the board of education discussed the "side letter" agreement and directed respondent Marmillo to terminate it, which he did on February 27, 1996. The district's local newspaper published an article reporting the board's action on February 28, 1996. This appeal ensued.

Petitioner alleges that the "side letter" is an illegal document, that respondent Marmillo improperly relieved respondent Warman of his full-time teaching duties in contravention of the district's collective bargaining agreement, that district funds were improperly paid to respondent Warman and that respondent Marmillo failed to perform his duties under the Education Law. She seeks annulment of the "side letter", repayment of respondent Warman's salary for the period covered under the letter, and an order directing his return to his teaching duties pursuant to the collective bargaining agreement.

Respondents raise several procedural defenses. They contend that the appeal is untimely, that petitioner has failed to join the Wappingers Board of Education and Congress of Teachers as necessary parties, and that the matter is moot. Respondents' assertions are correct.

First, the appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or the performance of the act complained of, except for good cause shown. Such cause must be set forth in the petition (8 NYCRR "275.16). Petitioner acknowledges in her petition that she "first discovered the existence of the side letter by accident in June 1995". Petitioner states that she spoke to a State Education Department representative in June 1995 about the side-letter and also spoke to Wappingers' school board members about the side-letter agreement at approximately the same time. Moreover, the districts' collective bargaining agreement, which petitioner asserts precludes such "side letter", was available in December 1995. Petitioner did not appeal to the Commissioner about the conduct of which she complains until May 28, 1996, when she served respondent Marmillo. She did not serve respondent Warman until June 18. Accordingly, the petition is time barred (Appeal of T.B., 35 Ed Dept Rep 408). Petitioner's claim that she filed the appeal within thirty days of receiving instructions to do so from the State Education Department does not constitute good cause for delay. Ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Klein, 35 Ed Dept Rep 91).

Petitioner has also failed to join a necessary party to the appeal, warranting its dismissal. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as same (Appeal of Kurlans, 37 Ed Dept Rep 293; Appeal of Bartling, 35 id. 324). Herein, petitioner failed to name or serve the Board of Education of the Wappingers Central School District, a party in interest to the agreement she attacks. Since petitioner seeks a determination that the side-letter agreement was illegally negotiated and is therefore null and void, an order directing respondent Warman to return to his teaching responsibilities as mandated by the collective bargaining agreement, and an order directing reimbursement to the Wappingers Central School District for illegal payments made under the side-letter agreement, it is apparent that the rights and responsibilities of the Wappingers Central School District would be affected if the Commissioner granted the relief requested by petitioner. Accordingly, the petition must be dismissed for petitioner's failure to name and serve the Wappingers Central School District as a party to this proceeding. In addition, to the extent that petitioner seeks an order directing the Wappingers Congress of Teachers to reimburse the school district, union organizations are not subject to the jurisdiction of the Commissioner of Education under Education Law "310. Thus, even if petitioner had properly joined the Wappingers Congress of Teachers as a party, I would be unable to grant the relief she seeks against the Congress.

Respondents are also correct in their contention that the appeal is moot. It is well settled that the Commissioner of Education will not render a decision upon a statement of facts which no longer exists or which subsequent events have laid to rest (Appeal of Goldin, 35 Ed Dept Rep 446; Appeal of Scarrone, 35 id. 443; Application of Ciffone, et al., 35 id. 243). In this case, the Wappingers Board of Education already terminated the side-letter and respondent Warman returned to the teaching duties required under the collective bargaining agreement. With respect to monies that petitioner claims are owed by the Wappingers Congress of Teachers to the Wappingers Board of Education on behalf of the school district, petitioner's failure to join the board of education and the jurisdictional limitation respecting the teachers' association, as discussed above, would preclude payment if, in fact, such monies were owed. Consequently, no further relief can be granted, and the matter is moot.

Finally, in her reply, petitioner raises allegations that the Wappingers Board of Education violated the Open Meetings Law relating to the conduct of executive sessions. Initially, I note that the purpose of a reply is to respond to procedural defenses or respond to new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or raise new allegations that should have been in the petition (Appeal of Chechek, 37 Ed Dept Rep 624; Appeal of Lambert, 37 id. 599). Thus, petitioner's new claims are improperly raised in her reply. Moreover, alleged violations of the Open Meetings Law must be pursued in a judicial proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules (Public Officers Law "107; Appeal of Lambert and MacDonald, 37 Ed Dept Rep 588; Appeal of Gwinner, 37 id. 262; Appeal of Marek, 35 id. 314). Therefore, I am without jurisdiction to decide those claims.

In view of the disposition of the procedural issues, I need not address petitioner's other claims.

THE APPEAL IS DISMISSED.

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