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Decision No. 14,856

Appeal of JOHN RECORE, on behalf of himself and his children, from action of the Board of Education of the Averill Park Central School District, Dr. Michael Johnson, Superintendent, Josephine Moccia, Assistant Superintendent, and Pamela Hatfield, School Business Administrator, regarding improper conduct, personnel decisions, and board practices.

 

 

(March 27, 2003)

 

Whiteman Osterman & Hanna, attorneys for respondents,

Beth A. Bourassa, Esq., of counsel  

MILLS, Commissioner.--Petitioner resides within the Averill Park Central School District ("district") and his children attend its schools.  Petitioner contends that respondents did not properly respond to an alleged hazing incident and made improper personnel decisions.  He further challenges various actions of the Board of Education of the Averill Park Central School District ("respondent board") relating to the conduct of several board meetings and the proposed budget for the 2002-2003 school year.  The appeal must be dismissed.

In late August or September of 2001, a ninth grade member of the district"s junior varsity football team was allegedly the victim of hazing by other football players in a high school locker room. The parties dispute when the district first became aware of the incident.  Respondents allege that the student did not promptly report it.

Petitioner raises numerous claims connected to this incident.  Petitioner alleges that respondents did not inform the victim's parents of the hazing or respond to it properly.  He claims that the head football coach, Kevin Earl, was aware of hazing at the high school and has not been held accountable for his past conduct, the hazing incident or his failure to supervise students.  Petitioner contends that respondents have rewarded employees who supported the district's handling of the hazing incident and retaliated against employees and a board member who criticized it.  In support of his claim, petitioner cites to respondent board's December 11, 2001 decision to extend Superintendent Johnson's contract; its January 22, 2002 decision to grant tenure to Assistant Superintendent Moccia; its January 22, 2002 decision to reassign the high school principal to other administrative duties; and its February 26, 2002 decision to eliminate the athletic director and high school assistant principal positions. 

Petitioner also asserts that respondent board improperly convened executive sessions on February 26, 2002 and March 26, 2002, improperly excluded one board member from an executive session on February 12, 2002, generally failed to follow proper procedures for conducting such sessions, and improperly ended its February 26, 2002 meeting.

Additionally, petitioner alleges that on February 7, 2002, Superintendent Johnson met with two wrestling coaches and pressured them to dissuade parents from attending the February 7, 2002 board meeting.

Moreover, petitioner challenges the proposed 2002-2003 budget that was presented to respondent board on February 26, 2002.  Specifically, he challenges the proposed budget"s projected rate increase from " percent to 4 percent for the district"s contribution to the New York State Teachers Retirement System.  He further contends that the budget is not consistent with respondent board's claim that it abolished the athletic director and high school assistant principal positions for budgetary, not retaliatory, reasons.

Petitioner requests the restoration of the athletic director and high school assistant principal positions; a review of respondents" conduct; and admonishment and/or removal of respondents.

Respondents allege that they properly responded to the hazing incident and that the athletic director and high school assistant principal positions were eliminated for budgetary, not retaliatory, reasons.  Respondents further allege that many of petitioner"s claims are time-barred; that petitioner lacks standing to challenge the board's personnel actions; that the Commissioner lacks jurisdiction over petitioner"s Open Meetings Law claims; that petitioner"s budget-related claims are moot; that petitioner has failed to name a necessary party; and that petitioner is not entitled to any of the requested relief.

     I must first address several procedural issues. Petitioner contends that he is asserting claims on behalf of "all those similarly situated."  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 Phillips, 40 Ed Dept Rep 241, Decision No. 14,471; Appeal of Codi, 40 id. 27, Decision No. 14,410). Although petitioner submits lists of signatures of district residents and teachers who are apparently dissatisfied with the district's decision to abolish the athletic director and high school assistant principal positions, he fails to set forth the number of individuals he seeks to represent and show that all questions of law and fact would be common to all members of the class (Appeal of Codi, supra; Appeal of Astafan, 36 Ed Dept 463, Decision No. 13,776). Therefore, class status is denied.

An appeal to the Commissioner must be instituted within 30 days of the action or decision complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Phillips, 40 Ed Dept Rep 241, Decision No. 14,471; Appeal of Karpen, 40 id. 44, Decision No. 14,417). This appeal was commenced on March 26, 2002.  Thus, petitioner"s claims that challenge actions taken by respondents prior to February 25, 2002 must be dismissed as untimely.  Those include all claims regarding the hazing incident and respondent's handling of it; the claim concerning the Superintendent"s meeting with two wrestling coaches on February 7, 2002; the claims regarding the December 11, 2001 decision to extend the Superintendent"s contract; the January 22, 2002 decision to grant tenure to the Assistant Superintendent; the January 22, 2002 decision to reassign the high school principal; and the claim regarding the executive session on February 7, 2002. However, I find petitioner's claims regarding the alleged improper abolition of the athletic director and high school assistant principal positions; the alleged Open Meetings Law violations; and the challenge to the proposed 2002-2003 school year budget to be timely.

     Petitioner lacks standing to challenge respondent board"s abolition of the athletic director and high school assistant principal positions.  Pursuant to Education Law "310, an individual may not maintain an appeal unless aggrieved in the sense that he has suffered personal damage or injury to his civil, personal or property rights.  Only persons who are directly affected by the action being appealed have standing (Appeal of DeCastro, 41 Ed Dept Rep ___, Decision No. 14,730; Appeal of Allen and Wong, 40 id. 372, Decision No. 14,501; Appeal of Murphy, 39 id. 562, Decision No. 14,311).  Status as a resident of a school district or as a parent of a student does not, in and of itself, confer standing to challenge a board of education"s actions concerning its employees (Appeal of DeCastro, supra; Appeal of Craft and Dworkin, 36 Ed Dept Rep 314, Decision No. 13,734; Appeal of Siracusa and Montana, 33 id. 563, Decision No. 13,151).  Since petitioner has failed to establish that he was personally affected by the abolition of the athletic director and high school assistant principal positions, his claim challenging the abolition of those positions must be dismissed.

     In addition, petitioner"s claims regarding the February 26, 2002 draft of the proposed 2002-2003 school year budget must be dismissed as moot.  The Commissioner 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 K.M., 41 Ed Dept Rep ___, Decision No. 14,699; Appeal of N.B., 40 id. 515, Decision No. 14,542; Appeal of N.C., 40 id. 445, Decision No. 14,522).  According to respondents, the final proposed budget that was approved by respondent Board and presented to the District"s voters on May 21, 2002 differed in number of ways from the February 26, 2002 draft.  They further allege that the final proposed budget, which was submitted to the voters, included a reduction in the district"s New York State Teachers Retirement System contribution rate.  Thus, petitioner"s claims with respect to the February 26, 2002 draft budget are now moot. 

Petitioner's claims concerning executive sessions and conduct of meetings must be dismissed for lack of jurisdiction (Public Officers Law "107). Public Officers Law "107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Winograd, et al., 42 Ed Dept Rep ___, Decision No. 14,814; Appeal of Lilker, 40 id. 305, Decision No. 14,486; Appeal of Instone-Noonan, 39 id. 413, Decision No. 14,275).  Therefore, these claims must be dismissed.

     To the extent petitioner asserts claims against Coach Earl, the appeal must also be dismissed for failure to join him as a necessary party.  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 such (Appeal of Roff, 41 Ed Dept Rep ___, Decision No. 14,708; Appeal of Gargan, 40 id. 465, Decision No. 14,528; Appeal of World Network International Services, Inc., 39 id. 30, Decision No. 14,164).  Coach Earl's rights would be adversely affected by any determination that he acted improperly.  Thus, petitioner"s failure to join Coach Earl requires the dismissal of any claims against him.

     In addition, petitioner has requested a "review" of respondents' conduct.  An appeal to the Commissioner of Education is appellate in nature and does not provide for investigations (Appeal of Devany, 41 Ed Dept Rep ___, Decision No. 14,747; Appeal of Sherwood, 39 id. 791, Decision No. 14,382).  Accordingly, the appeal is also improper to the extent that it seeks an investigation of the actions of school officials.

In light of this disposition, I need not address the parties" remaining contentions.

 

THE APPEAL IS DISMISSED.

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