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Decision No. 15,684

Appeal of JANET SCHUMANN from action of the Board of Education of the Palmyra-Macedon Central School District regarding board practices.

Decision No. 15,684

(November 13, 2007)

Anthony J. Villani, P.C., attorney for respondent, Mary Katherine Villani, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals certain alleged practices of the Board of Education of the Palmyra-Macedon Central School District (“respondent”).  The appeal must be dismissed.

Petitioner contends that respondent has violated law and district policies.  Petitioner contends, among other things, that respondent has failed to comply with Commissioner’s regulations and district policy pertaining to the hiring of substitute teachers, failed to adhere to the Open Meetings Law and improperly negotiated its contract with its Superintendent.  Petitioner seeks the removal of respondent’s board president and district clerk.

Respondent contends, among other things, that the petition is unverified, petitioner lacks standing, the appeal is untimely and the Commissioner lacks jurisdiction over alleged violations of the Open Meetings Law.

Respondent asserts that the petition is not properly verified as required by §275.5 of the Commissioner’s regulations.  While petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioner was not represented by counsel and my Office of Counsel did, in fact, receive a verified petition (Appeal of Jochnowitz, 46 Ed Dept Rep 80, Decision No. 15,446; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of M.M., 42 id. 323, Decision No. 14,870).

Respondent contends that petitioner lacks standing. Petitioner is a resident of the district and thus has standing to bring a removal proceeding pursuant to Education Law §306 (Application of Dunham, et al., 42 Ed Dept Rep 298, Decision No. 14,860; Application of Wilson, 41 id. 196, Decision No. 14,663; Application of Eisenkraft, 38 id. 553, Decision No. 14,092).

However, the appeal must 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 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). Here, petitioner seeks the removal of respondent’s district clerk and board president, but petitioner did not name or serve them.  Accordingly, the appeal must be dismissed for failure to join necessary parties.

The appeal must also be dismissed as untimely.  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).  Petitioner appeals issues arising more than 30 days prior to the service of the petition on August 22, 2007.  Accordingly, the petition must also be dismissed as untimely.

To the extent petitioner asserts claims under the Open Meetings Law, such claims must also be dismissed.  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 Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Finally, with respect to petitioner’s request that monetary charges be assessed against respondent, the Commissioner has no authority to award monetary damages in an appeal pursuant to Education Law §310 (Appeal of F.P., 47 Ed Dept Rep ___, Decision No. 15,465; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947).

THE APPEAL IS DISMISSED.

END OF FILE