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Decision No. 15,214

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Appeal of BENEDICT VIGLIETTA from action of the Board of Education of the Enlarged City School District of the City of Auburn, John Ferrara, Johnathan Roberts, Brian Piscotti, Janine Pellegrino, Jeannette Oliver, Jeffrey Evener, Elizabeth Case, Mark Angier, Jeffrey Alberici and Matthew Moskov regarding seniority.

Decision No. 15,214

(April 26, 2005)

James R. Sandner, Esq., attorney for petitioner, Marilyn S. Dymond, Esq., of counsel

Randy J. Ray, Esq., attorney for respondent Board of Education of the Enlarged City School District of the City of Auburn

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Enlarged City School District of the City of Auburn ("respondent board") to abolish his teaching position and its failure to appoint him to a social studies position in the district. The appeal must be dismissed.

In October 1998, respondent board hired petitioner to teach in the district's Air Force Junior ROTC ("AFJROTC") program and granted him a probationary appointment in the "technical subjects - AFJROTC" tenure area. In October 2001, respondent board awarded petitioner tenure in that same tenure area. On July 6, 2004, respondent board abolished the AFJROTC program and petitioner's position. On July 27, 2004, respondent board appointed Matt Dillon to a probationary appointment in the social studies tenure area.

Petitioner claims that respondent board appointed him to an unauthorized tenure area and that his duties most resemble those of a social studies teacher. Petitioner further asserts that he should be deemed to have served in the social studies tenure area and to have acquired tenure by estoppel in that tenure area. Petitioner contends that there are a number of other individual teachers with less seniority in the social studies tenure area, including Mr. Dillon. Petitioner seeks an order directing respondent board to appoint him to a social studies position with full pay and benefits, including back pay.

Respondent board contends, among other things, that petitioner did not accrue any seniority in the social studies tenure area and the appeal must be dismissed because petitioner failed to join Matt Dillon as a necessary party.

The appeal must be dismissed for failure to join 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 Stanton, 44 Ed Dept Rep 141, Decision No. 15,125; Appeal of Milazzo, 43 id. 294, Decision No. 14,999; Appeal of Stolbach, 43 id. 218, Decision No. 14,977). Mr. Dillon, as the undisputed least senior teacher, would be affected if petitioner prevails in this appeal. Respondent board raised this argument as an affirmative defense in its answer. On August 26, 2004, my Office of Counsel granted petitioner's request to join Mr. Dillon as a respondent and directed that the caption of the appeal be amended to include Mr. Dillon as a named respondent. Joinder requires that an individual be clearly named as a respondent in the caption of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Stanton, supra; Appeal of Milazzo, supra; Appeal of Stolbach, supra).

There is no evidence in the record that petitioner amended the caption of the notice of petition and petition to include Mr. Dillon as a respondent. An amended notice of petition and petition were not filed with my Office of Counsel as required by �275.9 of the Commissioner's regulations.

In addition, according to the affidavit of service that was filed, petitioner did not serve Mr. Dillon with an amended notice of petition and petition naming him as a party. Instead, it appears he was only served with the original pleadings. Therefore, I am constrained to dismiss the appeal for failure to join Mr. Dillon as a necessary party.

Since the appeal is dismissed on procedural grounds, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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