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Decision No. 16,010

Appeal of SARAH T.A. McCART, from actions of the Hoosick Falls Central School District and David Sutton, President of the Board of Education, John Helft, Vice President, Kenneth Facin, Superintendent, and Patrick Dailey, Principal, relating to teacher excessing.

Decision No. 16,010

(January 28, 2010)

Mann Law Firm, P.C., attorneys for petitioner, Andrew J. Proler, Esq., of counsel

Tabner, Ryan and Keniry, LLP, attorneys for respondents, William F. Ryan, Jr., Esq., of counsel

STEINER, Commissioner--Petitioner appeals the determination of the Hoosick Falls Central School District, David Sutton, President of the Board of Education, John Helft, Vice President, Kenneth Facin, Superintendent, and Patrick Dailey, Principal (“respondents”) to excess her from her teaching assistant position.  The appeal must be dismissed.

On September 1, 2000, petitioner was employed by the district as a teacher’s aide.  On January 20, 2004, the board approved the appointment of the district’s teachers’ aides, including petitioner, as teaching assistants for a three-year probationary period.  On May 20, 2008, the board approved petitioner’s tenure appointment in the area of teaching assistant, effective June 5, 2008.  On February 16, 2009, a Memorandum of Agreement was entered into between the district and the collective bargaining agent for the support staff which amends the order of appointment of teaching assistants to reflect the actual length of service in the district based upon the teaching assistant’s original date of hire.  By letter dated March 20, 2009, the district notified petitioner that her position within the district was abolished.  Petitioner filed a grievance with the district.  On or about April 14, 2009, the elementary school principal upheld his decision to abolish petitioner’s position as a teaching assistant, and on June 2, 2009, the board sustained the principal’s determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 6, 2009. 

Petitioner alleges that she was improperly terminated from the district because she was not the least senior within the tenure area of teaching assistant based on length of service in the district.  Petitioner contends that the seniority list used to determine the order of layoffs at the March 17, 2009 board meeting, does not list teaching assistants by their actual length of service within the district, as required by the Memorandum of Agreement.  Instead, the seniority list uses their date of appointment as a teaching assistant.  Petitioner requests that the board amend the seniority list to reflect the length of time each employee on said list has been employed within the district and direct the superintendent to reinstate petitioner to her position as a teaching assistant in the district.

Respondents contend that petitioner has failed to state a cause of action because petitioner was the least senior in the teaching assistant tenure area.  Respondents also assert that the appeal is untimely and that petitioners failed to join necessary parties.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  Petitioner commenced this appeal on July 16, 2009, more than 30 days after the board’s decision on June 2, 2009, and offers no good cause for her delay.  Therefore, the appeal must be dismissed as untimely. 

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 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).  Petitioner seeks reinstatement to her teaching assistant position in the district.  Currently, there are three teaching assistants that petitioner alleges have less seniority: Patricia Laporte, Theresa Bugbee and Terry Hinchliffe.  Since petitioner’s request for reinstatement may affect their status as teaching assistants, they are necessary parties to this appeal and petitioner’s failure to join them as such or to request permission to join them in a timely manner, (seeAppeal of Dupras, 47 Ed Dept Rep 471, Decision No. 15,757; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874; Appeal of Gargan, 40 id. 465, Decision No. 14,528) requires dismissal.

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

THE APPEAL IS DISMISSED.

END OF FILE.