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Decision No. 14,302

Application of KEITH W. McCART, JANET S. McCART and FRANK E. HEANEY for the removal of certain members of the Board of Education of the Hoosick Falls Central School District.

Decision No. 14,302

(February 11, 2000)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine A. Lanchantin, Kathy Ann Wolverton and John J. Toy, Esqs., of counsel

MILLS, Commissioner.--Petitioners seek the removal of Gordon Batcheller, Virginia Skorupski, and Frank S. Sheldon as members of the Board of Education of the Hoosick Falls Central School District ("respondent board"). The application must be denied.

On May 14, 1997, district voters approved four propositions relating to renovations, additions and repairs to school facilities and one proposition pertaining to the purchase of software and technology training. On June 4, 1997, district voters approved the 1997-98 proposed budget. The budget detailed projected expenses and was divided into categories and subcategories. It also included projected revenues to be received, such as State aid and property taxes.

In late December 1997, district officials realized that the district would face a cash flow problem due to miscalculations in projected revenues and expenses. To remedy the situation, on January 5, 1998, respondent board approved the issuance of a $1,100,000 revenue anticipation note ("RAN"). In addition, on January 9, 1998, respondent’s superintendent sent a memorandum to all district employees stating that the budget was frozen, except for emergency purchases made with the approval of the building principal.

Petitioners claim that Gordon Batcheller, Virginia Skorupski and Frank S. Sheldon, as "senior" members of respondent board, neglected their duty and willfully violated the lawful requirements of the Commissioner of Education when they authorized the issuance of the RAN. Among other things, petitioners submit that the senior board members failed to ensure district expenditures did not exceed the budget, failed to require monthly reports from the treasurer, and allowed the superintendent to make improper budgetary transfers. In sum, petitioners fault the three above-named senior board members for the financial difficulties experienced by the district.

Respondent board generally denies any willful violation or neglect of duty. Respondent’s superintendent claims that a fiscal problem arose due to an increase in unanticipated expenditures in addition to inaccurate projections in State aid, a delay in receiving State aid, building project expenditures and uncollected real property taxes. In light of these circumstances, and in response to recommendations by legal counsel and financial professionals, respondent board argues that it was entirely appropriate to approve a RAN and to make fund transfers pursuant to Part 170 of the Commissioner's Regulations. Respondent board further contends that the petition should be dismissed because it does not comply with 8 NYCRR "277.1(a), lacks the notice required for removal proceedings pursuant to 8 NYCRR "277.1(b), and fails to contain a clear and concise statement of a claim as required by 8 NYCRR "275.10. Respondent board further argues that the petition should be dismissed because petitioners have failed to properly join the individual board members, who are the subject of the petition, as necessary parties. Finally, respondent board contends that the petition should be dismissed on the merits because petitioners have failed to demonstrate any wrongdoing.

As a preliminary matter, petitioners offer new allegations and exhibits in their reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress allegations in the petition or add assertions or exhibits that should have been in the petition (Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077; Appeal of Thompson, 34 id. 134, Decision No. 13,259). Therefore, while I have reviewed petitioners’ reply, I have not considered those portions containing new allegations and exhibits, which are not responsive to new material or affirmative defenses in the answer.

The application must be denied on procedural grounds. Although petitioners seek the removal of Gordon Batcheller, Virginia Skorupski, and Frank S. Sheldon as board members, petitioners have not joined them as parties to this proceeding. An individual whose rights would be adversely affected by a determination of an appeal in favor of petitioners is a necessary party and must be joined as such (Appeal of Sadue-Sokolow, 39 Ed Dept Rep ___, Decision No. 14,155; Appeal of Morris, 38 id. 427, Decision No. 14,066; Appeal of Heller, 38 id. 335, Decision No. 14,048). Joinder requires that the individual be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Foshee, 38 Ed Dept Rep 346, Decision No. 14,051; Appeal of Heller, supra). In this case, petitioners failed to name the individual board members in the caption of the petition and notice of petition. The appeal, therefore, must be dismissed for failure to join these individuals (Appeal of Sadue-Sokolow, supra; Appeal of Heller, supra).

Moreover, I must also dismiss the appeal as moot with respect to Gordon Batcheller since he is no longer a board member. It is well settled that the Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Roberts, 38 Ed Dept Rep 68, Decision No. 13,984; Appeal of Chechek, 37 id. 624, Decision No. 13,943; Appeal of Mangaroo, 37 id. 578, Decision No. 13,932). Since petitioner seeks Mr. Batcheller's removal from the board, his claims against Mr. Batcheller are moot.

In addition, section 277.1(b) of the Commissioner’s regulations requires that notice be given to the officer whose removal is sought in a form substantially similar to that provided within the regulation. My review of the petition indicates that petitioners failed to use the appropriate notice required in the regulation (Application of Brennan, 35 Ed Dept Rep 214, Decision No. 13,520).

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

THE APPLICATION IS DENIED.

END OF FILE