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Decision No. 15,151

Appeal of SHARLEEN RESHARD from action of the Board of Education of the Hempstead Union Free School District regarding personnel decisions.

Decision No. 15,151

(December 22, 2004)

Ingerman Smith, LLP, attorneys for respondents, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges certain personnel decisions of the Board of Education of the Hempstead Union Free School District ("respondent") and seeks the removal of three board members, Regina L. Gordon, Betty Cross and Perre Smalls. The appeal must be dismissed.

On September 4, 2003, respondent passed a resolution to terminate the probationary appointment of the Assistant Superintendent for Personnel effective October 3, 2003.On March 9, 2004, respondent passed another resolution to rescind the September 4 action with board members Regina L. Gordon, Betty Cross and Perre Smalls (hereinafter referred to as Gordon, Cross and Smalls) voting in the majority. This appeal ensued. Petitioner's request for interim relief was denied on April 26, 2004.

Petitioner alleges that Gordon, Cross and Smalls intentionally and wrongfully violated Education Law �3012 by providing a new probationary appointment without the recommendation of the superintendent, thereby allegedly usurping the power of the superintendent, and seeks the removal of the three board members. Petitioner requests I hear this appeal as a class appeal.

Respondent alleges that the board acted lawfully when it rescinded the termination, and that the petition should be dismissed for lack of standing, failure to join necessary parties, and failure to meet the notice requirements required for the removal of board members under Education Law �306. In addition, respondent maintains that there is no basis for a class appeal.

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 Colety, 42 Ed Dept Rep 162, Decision No. 14,806; Appeal of Broardt, 42 id. 126, Decision No. 14,796). A petitioner must set forth the number of individuals he or she seeks to represent and show that all questions of law and fact would be common to all members of the class (Appeal of Colety, supra; Appeal of Broardt, supra). In the instant appeal, petitioner, representing an unnamed class, has not set forth the number of prospective members. Petitioner broadly asserts that the members of this proposed class have a right to expect that elected officials abide by the law. However, petitioner does not demonstrate that all questions of law and fact would be common to all members. Therefore, class status is denied.

To the extent petitioner seeks the removal of Regina L. Gordon and Perre Smalls, the appeal must be dismissed as moot since neither is currently serving on respondent board.

The appeal 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 petitioner is a necessary party and must be joined as such (Appeal of K.S., 43 Ed Dept Rep 492, Decision No. 15,063; Appeal of Lawson, 38 id. 713, Decision No. 14,124; 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 K.S., supra; Appeal of Lawson, supra; Appeal of Heller, supra).

The essence of petitioner�s appeal, and relief sought, is for the removal of Gordon, Cross and Smalls. The board members were not named in the caption of the petition or in the notice of petition such that they would have been on notice that they were intended to be parties to the appeal and were required to submit an answer. The appeal, therefore, must be dismissed for failure to join necessary parties (Appeal of Heller, supra).

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