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Decision No. 16,156

Appeal of NANCY HOLLIDAY, SHIRLEY BAKER and BARRY SEXTON from actions of the Board of Education of the Wyandanch Union Free School District regarding board practices.

Decision No. 16,156

(September 30, 2010)

Conway, Farrell, Curtin & Kelly, P.C., attorneys for respondents, Heather M. Palmore, Esq., of counsel

STEINER, Commissioner.--Petitioners, trustees of the Board of Education of the Wyandanch Union Free School District (“respondent” or “board”), appeal certain actions taken by the board.  The appeal must be dismissed.

At a board meeting on January 13, 2010, the board voted four to three to appoint Dr. Pless Dickerson as interim superintendent.  It also voted to grant Dr. Dickerson a leave of absence from his position as assistant superintendent for personnel, curriculum and staff development and to terminate the appointment of Dr. Mary Jones from her position as interim superintendent.  Petitioners allege that on January 9, 2010, the four majority members of the board who voted for the resolutions improperly met at the board president’s home without posting notice of the meeting.  Petitioners contend that this meeting was part of a pattern of illegal monthly board meetings disguised as a “Long Island Progressive Coalition” meeting, and that the board majority was violating the Open Meetings Law (Public Officers Law §107), conspiring to violate Education Law §1708 by avoiding the public, and planning the resolutions for the January 13, 2010 meeting, which were added to the meeting agenda at the last minute and thus not subject to discussion by the full board.  Petitioners also assert that the board majority has violated their civil rights by excluding them from decision-making.  Petitioners also contend that Dr. Dickerson’s appointment violated Article 18 of the General Municipal Law (“GML”) and board policies governing conflicts of interest and ethics.

Petitioners request that Dr. Dickerson’s appointment be declared null and void and in violation of the GML and board policy governing conflicts of interest (#6110), and that Dr. Jones be reinstated as interim superintendent.  They also request a finding that the board violated Education Law §1708 and their civil rights as minority members of the board, and request an order directing the board to cease meeting illegally.

Respondent denies petitioners’ allegations.  It asserts that the “Long Island Progressive Coalition” is a separate entity from the board, no board meetings have taken place without having been duly called in public in compliance with the Open Meetings Law, no meetings were held at the board president’s home on January 9, 2010 or at any time at which the removal of Dr. Jones from her position as interim superintendent and her replacement by Dr. Dickerson was planned, and Dr. Jones’ removal had been discussed during earlier executive sessions.  They further deny any violation of the GML or board policy on conflicts of interest, and assert that the appeal must be dismissed for failure to join necessary parties and as untimely.

I must first address two procedural issues.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Respondent asserts that the appeal is untimely.  However, the board meeting at which the challenged actions were voted upon was held on January 13, 2010.  The petition was served on February 8, 2010.  Accordingly, I decline to dismiss the appeal as untimely.

The appeal, however, must 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioners seek the reinstatement of Dr. Jones, which would necessitate termination of the appointment of Dr. Dickerson.  Petitioners, however, failed to name or serve either Dr. Jones or Dr. Dickerson, both of whom would be affected by a determination in favor of petitioners.  Such failure requires dismissal of the appeal.

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

THE APPEAL IS DISMISSED.

END OF FILE.