Appeal of MARK V. VALENTINO from action of the Board of Education of the Mount Morris Central School District and Superintendent Renee Garrett regarding tenure.

Decision No. 15,851

(December 12, 2008)

School Administrators Association of New York State, attorneys for petitioner, Arthur P. Scheuermann and A. Andre Dalbec, Esqs., of counsel

David W. Lippitt, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mount Morris Central School District (“respondent board” or “board”) to transfer him to a newly created position outside his tenure area.  The appeal must be dismissed.

On November 28, 1994, respondent board appointed petitioner to a three-year probationary term as a junior-senior high school principal in the tenure area of secondary administration.  The board granted petitioner tenure effective November 28, 1997.

On September 27, 2000, the board reorganized its administrative staffing within the district by abolishing the positions of elementary principal and junior-senior high school principal and laying off the incumbents, elementary principal Robert Riviello (“Riviello”) and petitioner, with recall rights to similar positions.  The board then created two new administrative positions:  principal K-12 for curriculum and instruction, and principal K-12 for student affairs.  The board determined that the position of principal K-12 for student affairs was similar to the position petitioner previously held and offered it to him.  Petitioner accepted and was appointed in accordance with his recall rights with no loss of salary, benefits or tenure status.  The board offered the other position to Riviello.

On August 9, 2006, the board again reorganized its administrative staffing.  This restructuring abolished the two K-12 principal positions held by Riviello and petitioner, who were laid off with recall rights to similar positions.  The board then created two new positions, principal K-8 and principal 9-12.  The board determined that the principal 9-12 position was similar to petitioner’s previous position and offered it to him.  Petitioner accepted and was appointed with no loss of salary, benefits or tenure status.  Riviello assumed the other position.

On August 15, 2007, the board yet again reorganized its administrative staffing.  It abolished the position of assistant principal 6-8; laid off the incumbent in that position, Michael Murray (“Murray”), with recall rights; recreated the position of principal K-12 for student affairs; appointed petitioner to that position within the administrative tenure area of K-12 principal for student affairs; and appointed Murray to a three-year probationary term in petitioner’s prior position as principal 9-12 in the administrative tenure area of high school principal 9-12.  By memorandum dated August 21, 2007, the superintendent notified petitioner of his new appointment.  (Apparently, Riviello remained in the principal K-8 position.)

By letter dated August 28, 2007 to respondents’ counsel, petitioner’s counsel alleged that the board had violated petitioner’s tenure rights by unilaterally transferring him to the tenure area of “K-12 Principal for Student Affairs.”  Petitioner’s counsel suggested a proposed solution in lieu of litigation, namely, that petitioner’s appointment be changed to the tenure area of secondary administration.  The letter also addressed an issue with Murray’s recent appointment.  On August 30, 2007, the parties orally resolved the dispute regarding Murray’s tenure, but not petitioner’s.

A series of written exchanges between counsels during September 2007 followed.  By letter dated September 7, 2007, petitioner’s counsel requested that the board pass a resolution returning petitioner’s tenure status to the area of “Secondary Administration,” or, alternatively, granting petitioner tenure in the area of “K-12 Administration” with all previously accrued seniority applied.  By letter dated September 10, 2007, respondents’ counsel agreed, interalia, that petitioner’s service in his current appointment would be treated as service in the secondary administration tenure area.  Petitioner’s counsel apparently also requested a memorandum of agreement outlining petitioner’s duties.  Respondents’ counsel objected to that request on September 12, 2007.  By letter dated September 13, 2007, petitioner’s counsel requested a board resolution specifying the restoration of petitioner’s tenure area, after which he would “retract [the] demand for a Memorandum of Agreement and withdraw the Commissioner’s Appeal without waiving [petitioner’s] right to refile (emphasis added).”  Four more letters were exchanged concerning this proposal.

By letter dated September 24, 2007, respondents’ counsel informed petitioner’s counsel that on September 20, 2007, the board had received an amended improper practice charge filed with the Public Employment Relations Board (“PERB”), relating, interalia, to petitioner’s transfer, and that in light of the pending PERB charge, the district could not move forward with a settlement “in lieu of litigation.”  This appeal ensued.

Petitioner asserts that each time the board changed his position, it offered him positions in accordance with his recall rights with no loss of salary, benefits or tenure status, thereby maintaining his tenure within the secondary administration tenure area.  He requests that respondent board’s August 15, 2007 resolution unilaterally transferring his tenure area from secondary administration to K-12 principal for student affairs be vacated, that he be restored to his tenure area of secondary administration, and that he be reinstated to his duties as principal 9-12 with all accrued seniority.

Respondents contend that the appeal must be dismissed as untimely and for failure to join Murray as a necessary party.  Respondents also contend that the appeal must be dismissed because petitioner is seeking similar relief in another forum (PERB).  Respondents deny that petitioner’s tenure rights were violated in any respect.  Finally, respondents request that portions of petitioner’s reply be stricken.

The appeal must 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).  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of a Preschool Child with a Disability, 43 Ed Dept Rep 343, Decision No. 15,012; Appeal of Williams, 42 id. 260, Decision No. 14,846).

Respondent board resolved to restructure its administrative staffing on August 15, 2007.  Petitioner did not serve the petition until October 4, 2007, more than 30 days later.  Petitioner contends that there is good cause for the delay because of the “good faith” efforts of the parties to resolve the tenure matter.  Petitioner asserts that he reasonably believed respondent board had agreed, by letter dated September 10, 2007, to treat his appointment as service in the secondary administration area, and was awaiting a board resolution to that effect at the next board meeting scheduled for September 26, 2007.  He contends, therefore, that no final determination from which an appeal could be taken would have occurred until September 26, 2007, and the appeal was commenced within 30 days of that meeting.

I find petitioner’s argument unavailing.  In petitioner’s counsel’s September 13, 2007 letter, he stated that following written confirmation “that a Board resolution rescinding the August 15th change in [petitioner’s] tenure area . . . has or will take place . . [he will] withdraw the Commissioner’s Appeal without waiving [petitioner’s] right to refile (emphasis added).” Such language clearly indicates that petitioner acknowledged that the board’s action occurred on August 15, 2007.  Refining the terms of the appointment is essentially a request for reconsideration, which does not extend the time within which an appeal must be commenced (Appeal of a Preschool Child with a Disability, 43 Ed Dept Rep 343, Decision No. 15,012; Appeal of Williams, 42 id. 260, Decision No. 14,846).  Moreover, the letter indicated that petitioner had already instituted an appeal, or, was at least keenly aware of the appeal process and its requirements.  In this case, petitioner had not filed a previous appeal and did not serve the instant petition until October 4, 2007.  Accordingly, the appeal must be dismissed as untimely.

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 requests that he be reinstated to his duties as principal 9-12, the position to which Murray was appointed on August 15, 2007, and that Murray be reassigned to Murray’s previous duties as assistant principal 6-8 and director of physical education.  Petitioner contends that since the board restored Murray’s tenure area to secondary administration, Murray’s reassignment would still be sufficiently within his tenure area and therefore does not affect his tenure rights and he need not be joined as a necessary party.

Petitioner’s argument is again unavailing.  A decision in favor of petitioner would clearly impact Murray’s employment and therefore he is a necessary party to this proceeding.  However, Murray was not named as a respondent, and there is no evidence that he was personally served with notice of the petition or the petition.  Accordingly, the appeal must be dismissed for failure to join a necessary party.

In light of this disposition, I decline to address the parties’ remaining arguments.

THE APPEAL IS DISMISSED.

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