Appeal of BRIAN W. JOHNSON from action of the Board of Education of the West Canada Valley Central School District regarding employment rights.

Decision No. 15,555

(March 30, 2007)

Girvin & Ferlazzo, PC, attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks appointment by the Board of Education of the West Canada Valley Central School District (“respondent”) to a full-time school psychologist position, with the tenure status, salary and benefits of his previously abolished position with the Herkimer-Fulton-Hamilton-Otsego Board of Cooperative Educational Services (“BOCES”).  The appeal must be dismissed.

Petitioner is a certified school psychologist who was employed by the BOCES until his position was abolished effective June 30, 2006.  On May 1, 2006, petitioner received written notice from the BOCES’ district superintendent that he would be placed on a preferred eligible list pursuant to Education Law §2510(3) and notified of vacancies for which he could exercise his right to be recalled based upon his seniority with the BOCES.  On May 15, 2006, the district superintendent provided additional notice to petitioner confirming the BOCES’ May 11, 2006 decision to abolish his position due to decreased requests for services and student enrollments, and that he would be place on a preferred eligible list. 

During the 2005-2006 school year, respondent contracted for a six-tenths (.6) full time equivalent (FTE) school psychologist from the BOCES on a part-time basis.  The BOCES employee assigned to these duties was not the petitioner.  Previously, through the 2003-2004 school year, respondent had contracted for an eight-tenths (.8) FTE school psychologist.  More than four years ago, petitioner was assigned by the BOCES to work in respondent’s district four days a week as school psychologist and as chairperson of the Committee on Special Education (“CSE”).  Petitioner spent the fifth day at a different school district.

During the 2005-2006 school year, respondent determined that the full-time services of a school psychologist were needed.  On April 15, 2006, the superintendent notified the BOCES that respondent would not be contracting for school psychologist services during the 2006-2007 school year.  During the spring of 2006, respondent’s superintendent advertised for a full-time school psychologist with a posted salary of $35,000, plus benefits.  Petitioner applied for the position, but was not recommended by the interview committee.  On June 5, 2006, respondent appointed Rita Marie Vivaqua as a full-time probationary school psychologist for the 2006-2007 school year.  This appeal was commenced on July 24, 2006.

Petitioner contends that he is entitled to be appointed by respondent to a school psychologist position with the tenure status, salary and benefits of his previously abolished BOCES position, pursuant to Education Law §§3014-a or 3014-b.

Respondent denies that petitioner has any rights under Education Law §§3014-a or 3014-b.  Respondent contends that the appeal is untimely and that service was improper.  Respondent also contends that the petition should be dismissed for failure to join Rita Marie Vivaqua as a necessary party.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).  In this case, the record does not indicate when petitioner received the May 15, 2006 letter notifying him that his position was abolished at the May 11, 2006 BOCES Board Meeting.  Even allowing an additional five days for mailing, petitioner’s appeal was not commenced within 30 days, nor was the appeal commenced within 30 days of respondent’s June 5, 2006 appointment of Ms. Vivaqua as a probationary school psychologist.  Since petitioner offers no information to establish good cause for his delay in commencing this appeal, I must dismiss the appeal as untimely.

     The appeal must also be dismissed for lack of personal service upon respondent.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).

     It appears from the record that the petition was served on Jean Grower, a secretary in the office of the superintendent.  The affidavit of service submitted by petitioner states that Ms. Grower indicated that she was authorized to accept service.  However, Ms. Grower’s affidavit, submitted with the Answer denies that she is authorized to accept service on behalf of respondent.  Ms. Grower asserts that she was not asked whether she was authorized to accept service or informed that the envelope she was handed was an appeal to the Commissioner.  Under these circumstances, I find that petitioner failed to effect service upon respondent.

     The appeal must also 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 a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy 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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

     Petitioner claims entitlement to the position of school psychologist currently held by Ms. Vivaqua without joining her as a party.  As Ms. Vivaqua would be adversely affected by a determination in petitioner’s favor, she should have been named as a respondent and served with the petition.  Petitioner’s failure to name and serve Ms. Vivaqua requires dismissal of the appeal. 

Although the appeal is dismissed on procedural grounds, I am compelled to note that the courts have not interpreted Education Law §3014-b to include the position of school psychologist (seeMatter of Fink v. Avon Cent. School Dist., 207 A.D.2d 973 [1994], motion for leave to appeal denied, 85 NY2d 804; Matter of Board of Educ. of North Tonawanda City School Dist. v. Tonawanda City School Dist. v. Mills, 263 A.D.2d 574 [1999], motion for leave to appeal denied, 94 NY2d 751).   Although petitioner cites a 2006 legislative proposal to the contrary, that proposal was never enacted (see Veto Message No. 348 of 2006).

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

THE APPEAL IS DISMISSED.

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