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Decision No. 16,205

Appeal of M.J.G. from actions of Vicki Wright, Superintendent of the Springville-Griffith Institute Central School District, regarding accountability.

Decision No. 16,205

(March 16, 2011)

Hodgson Russ LLP, attorneys for respondent, John J. Christopher, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals certain actions of Vicki Wright, Superintendent of the Springville-Griffith Institute Central School District (“respondent” or “superintendent”), and seeks her removal.  The appeal must be dismissed.

On January 29, 2010, the district received its 2009-2010 School Report Card from the State Education Department (“SED”).  Included on the Report Card was information that one subgroup, students with disabilities, at the district’s Springville Elementary School (“school”), had failed to make “adequate yearly progress” (“AYP”) as defined in §100.2(p)(5) of the Commissioner’s regulations.  Petitioner asserts that the superintendent neglected to notify him, a parent of a child with special needs at the school, or the board of education (“board”) that the school had failed to make AYP.  He also contends that the superintendent failed to take corrective action.

In October 2010, the district was notified that the school again failed to make AYP.  Petitioner admits that the superintendent informed the board of this notification, but contends that she failed to act upon information contained in an SED memorandum issued in December 2009 concerning how to determine AYP for this same subgroup despite the school’s previous AYP failure.  He contends further that the superintendent’s inaction and neglect caused him to withdraw his child from her special needs program and enroll her in general education classes.

Petitioner seeks to remove the superintendent for the educational neglect of his child and others and requests that I appoint an interim superintendent.  He seeks to remove or place on administrative leave the Director of Special Education and the Director of Technology, Data and Assessment (“directors”) pending further investigation.  He also requests that I appoint an interim Director of Special Education and that I require the district to notify all concerned parties of the district’s failure to make AYP.

Respondent denies petitioner’s allegations and asserts that petitioner failed to establish the facts upon which he seeks relief.  She also contends that the appeal must be dismissed as untimely, for failure to join necessary parties and for improper notice.

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).  Petitioner did not commence his appeal until November 16, 2010, more than nine months after SED issued the Report Card on January 29, 2010 and after the superintendent allegedly failed to inform him or the board that the district had not made AYP.  In addition, to the extent petitioner alleges that the superintendent’s neglect caused him to remove his child from her special needs program, the record reveals that by letter dated November 13, 2009, more than twelve months prior to the commencement of the appeal and two and a half months prior to the issuance of the Report Card, petitioner’s wife directed the Director of Special Education to terminate all services “via her IEP” for their daughter.  Petitioner submits no reply to respondent’s answer and offers no good cause for the delay.  Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed for improper notice.  Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office pursuant to Education Law §306.  In this case, petitioner failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660).  Accordingly, although petitioner served the petition upon the superintendent, the petition did not contain the proper notice and the appeal must be dismissed as to her.

To the extent petitioner seeks to remove or suspend the Director of Special Education and the Director of Technology, Data and Assessment, the appeal must be dismissed for failure to join them as 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).  Neither director was named as a respondent and there is no indication that the directors were served with a copy of the notice of petition or petition.  Accordingly, petitioner’s claims for the removal or suspension of the directors must be dismissed.

Finally, to the extent petitioner requests that I conduct an investigation of the directors, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

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

THE APPEAL IS DISMISSED.

END OF FILE.