Skip to main content

Search Google Appliance

Search Google Appliance

Decision No. 15,853

Appeal of SARAH WAECHTER, from actions of SCOTT STEPIEN, a member of the Board of Education of the Lewiston-Porter Central School District, regarding defense and indemnification.

Decision No. 15,853

(December 12, 2008)

MILLS, Commissioner.--Petitioner is a taxpayer and a qualified voter of the Lewiston-Porter Central School District (“district”).  She challenges actions by Scott Stepien (“respondent” or “Stepien”), a member of the district’s Board of Education (“board”), regarding a board resolution from July 17, 2008.  The appeal must be dismissed.

The factual background of this appeal may be found in two prior decisions (Appeal of Lilly, 47 Ed Dept Rep 268, Decision No. 15,692, and Appeals of Stepien and Lilly, 47 id. 388, Decision No. 15,732).  The facts stated in those decisions will not be repeated here. 

On June 30, 2008, after Stepien had been restored to membership on the board, he commenced a civil rights action in the United States District Court for the Western District of New York, entitled Scott A. Stepien v. David S. Schaubert, et al.  Four of the defendants, David S. Schaubert, Louis M. Palmeri, Robert Laub, and James Mezhir, are former members of the board who voted on June 30, 2007, to expel Stepien from the board.

At a special meeting on July 17, 2008, the board voted 4-2 to deny a request by defendants Schaubert, Palmeri, Laub, and Mezhir for defense and indemnification in the civil rights action brought against them by Stepien.  Stepien voted in favor of that denial.

At the same time, the board voted 5-2 to submit the requests by Schaubert, Palmeri, Laub, and Mezhir to its insurance carrier for possible defense and indemnification.  Respondent Stepien voted against that motion.

Petitioner claims that respondent’s actions violated Education Law §3811, and were unethical, a conflict of interest, self-serving, and an abuse of power.  She requests a determination that respondent’s actions were unethical and in violation of Education Law §3811.  She also requests: ”Restoration of defense and indemnity for former Board Members Robert Laub, James Mezhir, Louis Palmeri and David Schaubert.”

Respondent denies any wrongdoing on his part and asserts several affirmative defenses, including lack of standing and failure to join essential parties.

The appeal must be dismissed because petitioner lacks 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). 

Petitioner does not allege any injury to herself, nor does she allege any wrongful use of district funds.  Petitioner may not assert claims that clearly belong only to others (Appeal of Peto, 31 Ed Dept Rep 390, Decision No. 12,677). 

The appeal must also be dismissed because petitioner has failed to name and serve the Board of Education as 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 seeks “restoration” of defense and indemnity rights, which could only be done by the board of education, not by respondent individually.

To the extent that the petition could also be read as requesting a declaratory ruling with respect to respondent’s actions, it must also be dismissed.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791; Appeal of Hillhouse, 41 id. 385, Decision No. 14,720). 

THE APPEAL IS DISMISSED.

END OF FILE