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Decision No. 14,410

Appeal of DANIEL A. CODI, on behalf of an unnamed class, from action of the Board of Education of the Florida Union Free School District regarding disciplinary action against a principal.

Appeal of DANIEL A. CODI from action of the Board of Education of the Florida Union Free School District regarding disciplinary action against a principal.

Decision No. 14,410

(July 28, 2000)

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner challenges the actions of the Board of Education of the Florida Union Free School District ("respondent") suspending Ronald DePace, an elementary school principal in the district, pending a disciplinary hearing. Because the appeals concern similar issues of law and fact, they are consolidated for decision. The appeals must be dismissed.

On March 22, 2000, respondent found probable cause to initiate disciplinary proceedings against Mr. DePace pursuant to Education Law "3020-a. Respondent brought nine charges against Mr. DePace and suspended him with pay during the pendency of the proceedings. The first appeal ("Codi I") ensued on April 18, 2000. Petitioner's request for interim relief was denied on May 1, 2000.

On April 21, 2000, respondent found probable cause existed on seven additional charges against Mr. DePace pursuant to Education Law "3020-a. Respondent again voted to suspend Mr. DePace with pay during the pendency of the proceedings. The second appeal ("Codi II") ensued on May 31, 2000. Petitioner's request for interim relief was denied on June 12, 2000.

In both appeals, petitioner contends that respondent acted arbitrarily and capriciously in suspending Mr. DePace prior to his disciplinary hearing and requests that the suspension be overturned. Respondent asserts that petitioner lacks standing; Codi I may not be brought as a class action; Codi II is untimely; both petitions fail to state a claim upon which relief may be granted; and that it acted reasonably and in compliance with Education Law "3020-a.

Preliminarily, petitioner seeks to bring Codi I on behalf of "the large unnamed class of school district residents, who find the respondents [sic] action in suspending Mr. DePace, prior to his hearing, to be wholly without rational or reasonable basis." An appeal may only be maintained on behalf of a class "where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR "275.2; Appeal of Prentice, 38 Ed Dept Rep 736, Decision No. 14,130; Appeal of Astafan, 36 id. 463, Decision No. 13,776; Appeal of Czerepak, 31 id. 448, Decision No. 12,695). Although petitioner submits a "petition of support" for Mr. DePace signed by 189 individuals, he fails to set forth the number of individuals he seeks to represent (Appeal of Lambert, 37 Ed Dept Rep 599, Decision No. 13,937; Appeal of Astafan, supra; Appeal of Sperl, 33 Ed Dept Rep 388, Decision No. 13,088) and show that all questions of law and fact would be common to all members of the class (Appeal of Astafan, supra; Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079). He has failed to make such showings. Therefore, class status is denied.

Petitioner also lacks standing to maintain these appeals. Petitioner argues that he is appealing Mr. DePace's suspension not on behalf of Mr. DePace, but rather on behalf of the children of the elementary school upon whom Mr. DePace's absence has had an impact. However, to bring an appeal to the Commissioner, petitioner must show that he is personally aggrieved in the sense that he has suffered personal damage or injury to his civil, personal or property rights. Without a showing of such personal injury, neither his status as a resident of the district nor even as a parent of a student in the district automatically confers standing to appeal actions of a board of education with respect to its employees (Appeal of Ogbunugafor, 38 Ed Dept Rep 105, Decision No. 13,994; Appeal of Reed, et al., 33 id. 216, Decision No. 13,029; Appeal of Pecorale, et al., 31 id. 493, Decision No. 12,712). Accordingly, petitioner does not have standing to assert the alleged rights of Mr. DePace and the appeals must be dismissed.

The appeals must also be dismissed on the merits. Education Law "3020-a(2)(b) specifically provides that "the employee may be suspended pending a hearing on the charges and the final determination thereof. The suspension shall be with pay . . ." except under certain circumstances not applicable here. In suspending Mr. DePace with pay pending his hearing, respondent acted in compliance with "3020-a and in no way acted arbitrarily or capriciously. Thus, petitioner's claims are wholly without merit.

Furthermore, since the enactment of amendments to "3020-a in 1994, the Commissioner no longer has jurisdiction to hear appeals from the hearing officer's decision. Section 3020-a(5) provides that the employee or board of education must make an application to the New York Supreme Court to vacate or modify a hearing officer's decision.

In light of the foregoing disposition, I will not address the parties' remaining arguments.

THE APPEALS ARE DISMISSED.

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