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Decision No. 15,907

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the East Meadow Union Free School District regarding the removal of certain school employees.

Decision No. 15,907

(March 26, 2009)

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Superintendent Leon J. Campo (“Campo”) and Summer School Principal Edward J. Sergison (“Sergison”) from their respective positions with the East Meadow Union Free School District.  The appeal must be dismissed.

The factual background of this appeal may be found in a prior decision (Appeal of a Student with a Disability, 48 Ed Dept Rep ___, Decision No. 15,899).  Those facts will not be restated here.

Petitioner contends that Sergison and Campo should be removed from their respective positions for wilful misconduct and neglect of duty.  Petitioner also requests a determination that Sergison and Campo violated federal and State anti-discrimination laws and otherwise neglected their duties by not allowing her son access to a hearing dog.

Respondent, the Board of Education of the East Meadow Union Free School District, denies that Sergison and Campo engaged in wilful or intentional misconduct or wilful neglect of their responsibilities and asserts that they acted in good faith.  Respondent contends, interalia, that there was no notice given by petitioner that her son intended to bring a dog to school and that petitioner’s son was provided the services and testing accommodations on the examination consistent with his IEP and §504 plan.

The Commissioner is without authority to order the removal of Sergison.  Education Law §306 authorizes the Commissioner to remove a “trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools, or other school officer.”  Sergison is a district employee, not a school officer subject to removal under §306 (Application of V.M., 46 Ed Dept Rep 531, Decision No. 15,584;  Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of A Student with a Disability, 36 id. 181, Decision No. 13,694).

In addition, the appeal must be dismissed because 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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  The essence of petitioner’s appeal, and the relief sought, is for the removal of Sergison and Campo.  They were not named or served with a copy of the petition.  I find therefore, that the appeal must be dismissed.

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

THE APPEAL IS DISMISSED.

END OF FILE