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Decision No. 14,704

Appeal of LAURIE A. BRANCH, EARL McELFRESH and THOMAS E. BRANCH from action of the Board of Education of the City School District of the City of Olean and Ralph P. Kerr, Superintendent, regarding a principal position.

Appeal of LAURIE A. BRANCH, EARL McELFRESH and THOMAS E. BRANCH from action of the Board of Education of the City School District of the City of Olean and Ralph P. Kerr, Superintendent, regarding a principal position.

Decision No. 14,704

(March 27, 2002)

Wagner & Hart, attorneys for petitioners, John M. Hart, Jr., Esq., of counsel

 

Hogan & Sarzynski, LLP, attorneys for respondents Board of Education and Ralph P. Kerr, John P. Lynch, Esq., of counsel

 

MILLS, Commissioner.--Petitioners, in two separate appeals, challenge actions of the Board of Education of the City School District of the City of Olean ("respondent board") relating to the principal positions at two district elementary schools. Since the appeals concern related issues of fact, they are consolidated for decision. The appeals must be dismissed.

On November 21, 2000, respondent board passed a resolution "that an alternative mode of building administration be employed effective July 1, 2001, that would combine the principalship responsibilities of the North Hill and Boardmanville Elementary Schools." As of September 2000, Boardmanville had an enrollment of 224 students. North Hill, located 8/10 of a mile away from Boardmanville, had an enrollment of 136. These same petitioners initiated an appeal on April 5, 2001 (hereinafter "Branch I") contending that the resolution violated 8 NYCRR "100.2(a), which requires a board of education to "employ and assign to each school under its supervision a full-time principal holding the appropriate certification...."

On July 20, 2001, I dismissed petitioners' appeal in Branch I as untimely because respondent board passed the resolution on November 21, 2000, yet petitioners did not commence the appeal until April 5, 2001, more than four and one-half months later (Appeal of Branch, 41 Ed Dept Rep ___, Decision No. 14,606). However, I also stated in my decision that "it appears from the record that a variance request is required to effectuate respondent board"s resolution." Pursuant to "100.2(a), the Commissioner may approve another mode of building administration "upon the submission of evidence that there are circumstances which do not justify the assignment of a principal to a particular school, or that another mode of building administration would be more effective."

Petitioners in the first appeal herein (hereinafter "Branch II") assert that as of July 1, 2001, a single (unnamed) individual was assigned to serve as principal of both elementary schools, but respondent board and respondent Kerr failed to apply to the State Education Department ("SED") for a variance from the building principal requirement in "100.2(a). Petitioners initiated Branch II on July 30, 2001, seeking respondents' compliance with the law and regulations. Respondents in Branch II contend that the appeal must be dismissed as untimely and moot, and because it is an improper attempt to reopen Branch I. They also assert that petitioners failed to join the incumbent principal as a necessary party.

In the second appeal herein (hereinafter "Branch III"), initiated on October 16, 2001, petitioners challenge respondent board"s September 18, 2001 resolution appointing Pat Waruch, a full-time third grade teacher at North Hill, as North Hill"s interim principal. Initially, petitioners named the district superintendent as a respondent but later withdrew their claims against him.

In Branch III, petitioners assert that Maureen Donahue, the current principal at Boardmanville, is also serving as the shared principal at both Boardmanville and North Hill. Petitioners assert that without an approved variance from SED, neither the appointment of a principal with full-time teaching responsibilities nor the appointment of a shared principal complies with "100.2(a). Petitioners further contend that in implementing alternative modes of building administration prior to obtaining a variance, respondents have also failed to comply with the directives in Branch I. They again seek respondents" compliance with the law and regulations. Respondents in Branch III contend that petitioner Laurie Branch lacks standing, that the petition is not properly verified and is an improper attempt to reopen Branch I, and that petitioners failed to join Ms. Donahue and Ms. Waruch as necessary parties.

I will first address several procedural issues. Respondents assert that both appeals are essentially attempts to reopen Branch I pursuant to 8 NYCRR "276.8. I find that each appeal raises new issues of fact not present in Branch I, and therefore, each can be considered as a new appeal, not an application to reopen.

In Branch II, respondents assert that the appeal is untimely because the petition seeks a review of respondent board's resolution on November 21, 2000, yet the appeal was not initiated until July 30, 2001. An appeal to the Commissioner pursuant to Education Law "310 must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). However, in Branch II, petitioners are not challenging the November 2000 resolution. Rather, they are challenging the July 1, 2001 implementation of the resolution, that is, respondents' assignment of one individual as principal of both schools. Accordingly, since Branch II was initiated on July 30, 2001, it is timely.

Respondents further contend that in Branch III, petitioner Laurie Branch lacks standing. Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law "310, and an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Application of Wilson, 41 Ed Dept Rep ___, Decision No. 14,663; Appeal of Kackmeister, 39 id. 466, Decision No. 14,285; Appeal of Woodward, 36 id. 445, Decision No. 13,773).

In Branch I, all three petitioners asserted that they were the parents of children attending Boardmanville. However, in Branch II and III, petitioner Laurie Branch asserts only that she is the parent of a child who attends school in the district, but not of a child who attends Boardmanville or North Hill. Status as a resident of a school district, rather than as a parent of a child in one of the impacted schools, does not, in and of itself, confer standing to seek review of actions of the board of education with respect to its employees (Appeal of Chan and Grogan, 41 Ed Dept Rep ___, Decision No. 14,656; Appeal of Gaul, 40 id. 105, Decision No. 14,432; Appeal of Sherwood, 39 id. 791, Decision No. 14,382). Accordingly, petitioner Laurie Branch has failed to establish that respondents' alleged violation caused injury or damage to her own rights (Appeal of Gaul, supra). Therefore, the appeals of petitioner Laurie Branch in Branch II and III are dismissed for lack of standing.

Respondents further argue that since petitioner Laurie Branch does not have standing in Branch III, and she is the sole petitioner who verified the petition, that appeal is null and void. Section 275.5 of the Commissioner"s regulations requires that all pleadings be verified "by the oath of at least one of the petitioners." The regulation does not require that the verifying petitioner ultimately be successful or have standing to bring the appeal. Laurie Branch, as a petitioner, properly verified the petition. The fact that I subsequently found that she lacks standing does not negate the verification. Accordingly, I reject respondents" argument.

The Commissioner of Education will only decide 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 D.H., 41 Ed Dept Rep ___, Decision No. 14,640; Appeal of N.B., 40 id. ___, Decision No. 14,542). To the extent that Branch II seeks compliance with 8 NYCRR "100.2(a) by having respondents apply to SED for a variance, that appeal must be dismissed as moot because respondents submitted a variance application to SED on September 12, 2001.

The appeals must also be dismissed for failure to join necessary parties. A party 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 Wheeler, 40 Ed Dept Rep ___, Decision No. 14,581; Appeal of Heller, 38 id. 335, Decision No. 14,048). Such individual must be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Heller, supra). Since a decision in favor of petitioners would clearly affect Ms. Donahue"s and Ms. Waruch"s positions as principals, they are necessary parties. As such, petitioners were required to name them as respondents and personally serve them with a copy of the petition and notice of petition (8 NYCRR "275.8; Appeal of Heller, supra). Their failure to do so warrants dismissal of these appeals.

Although I am constrained to dismiss the appeals on procedural grounds, I must again comment on respondents" actions. Section 100.2(a) requires a board of education to "employ and assign to each school under its supervision a full-time principal holding the appropriate certification...." Under the regulation, the Commissioner may approve another mode of building administration "upon the submission of evidence that there are circumstances which do not justify the assignment of a principal to a particular school, or that another mode of building administration would be more effective." Respondent Kerr submitted an application for a variance to SED on or about September 12, 2001. By letter dated December 17, 2001, Assistant Commissioner James R. Butterworth informed respondent Kerr that the district"s variance request was denied. Accordingly, since there is no approved variance in place, respondent board is required to comply with "100.2(a) and to have a full-time principal in each school. Respondents" current arrangements do not appear to comply with the regulation.

If respondents desire to employ an alternative mode of building administration for these two elementary schools for the 2002-2003 school year, I strongly urge them to submit a timely variance application in accordance with the suggestions outlined in Assistant Commissioner Butterworth"s letter of December 17, 2001.

 

THE APPEALS ARE DISMISSED.

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