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Decision No. 15,751

Appeal of LARAINE SALVATORE from action of the Board of Education of the Mineola Union Free School District regarding board practices.

Decision No. 15,751

(May 30, 2008)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jacob S. Feldman and James H. Pyun, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges actions of the Board of Education of the Mineola Union Free School District (“board” or “respondent”) and certain district administrators.  The appeal must be dismissed.

Petitioner, a member of the board, alleges that in July 2007, the board commissioned an attorney (“investigatory counsel”) to investigate allegations of alleged wrongdoing by the superintendent and deputy superintendent.  On January 24, 2008, investigatory counsel submitted a confidential report to the board on the allegations.  This appeal ensued.

Petitioner alleges that, despite the report’s findings and conclusions, the board failed to take any remedial action.  Petitioner further alleges that on two separate occasions, three board members willfully violated the No Child Left Behind Act by failing to notify parents that certain educators who taught core academic subjects were uncertified.  Petitioner also contends that the superintendent wrongfully manipulated and tampered with official documents to enhance the candidacy of a certain individual for a tenured position as deputy superintendent and she further claims that three board members failed to release documents to the district attorney related to the interview process.  Petitioner requests that I investigate and discipline the superintendent, deputy superintendent and the three board members.  Petitioner further requests that I reinstate a former employee to her position as “Administrative Assistant II”.

Respondent maintains that the petition fails to state a cause of action and that petitioner failed to present any evidence or other proof to establish or corroborate her allegations.  Respondent further alleges that petitioner lacks standing to commence this appeal, that the claims are untimely and that the Commissioner lacks authority and/or jurisdiction to conduct investigations.  Respondent also alleges that petitioner’s verified reply raises new facts and issues that must be disregarded.

Initially, I must address several procedural issues, beginning with the reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

With respect to timeliness, 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).  Many of the actions alleged by petitioner took place more than 30 days prior to the commencement of this appeal on February 4, 2008.

Petitioner requests that her claims be considered timely because they reflect ongoing practice.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Appeal of Rizzo, 44 Ed Dept Rep 173, Decision No. 15,138; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804).  None of petitioner’s alleged actions resulted in ongoing unlawful situations.  Therefore, petitioner’s claims that relate to actions that occurred more than 30 days prior to the commencement of this appeal must be dismissed as untimely.

Respondent also correctly points out that petitioner’s request for reinstatement of a former employee must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).  Since petitioner has failed to articulate how the board’s conduct in this matter has directly affected her, her claims challenging respondent’s personnel actions must be dismissed (Appeal of Recore, 42 Ed Dept Rep 283, Decision No. 14,856).

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 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 failed to name or join the individual who currently holds the position of Administrative Assistant II, the superintendent, the deputy superintendent or the board members whose actions petitioner is challenging.  Since the requested relief would adversely affect these individuals’ rights, they are all necessary parties, and petitioner’s failure to join them requires dismissal.

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

THE APPEAL IS DISMISSED.

END OF FILE