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Decision No. 16,223

Application of AMY Z. DICKINSON for the removal of Vicki Wright as Superintendent of the Springville-Griffith Institute Central School District and appeal from actions of the Board of Education of the Springville-Griffith Institute Central School District regarding financial practices.

Decision No. 16,223

(March 31, 2011)

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

STEINER, Commissioner.--Petitioner seeks the removal of Vicki Wright as superintendent of schools (“respondent” or “superintendent”) of the Springville-Griffith Institute Central School District (“district”) and appeals certain actions of the district’s Board of Education (“board”).  The application must be denied and the appeal must be dismissed.

Pursuant to Real Property Tax Law (“RPTL”) §1318(1), at the conclusion of each fiscal year, a board of education must apply any unexpended surplus funds to reduce its tax levy for the upcoming school year.  Surplus funds are defined as "any operating funds in excess of four percent of the current school year budget, and shall not include funds properly retained under other sections of law" (RPTL §1318[1]).

Petitioner seeks to remove the superintendent for wilfully violating RPTL §1318(1).  She asserts that in January 2010, the superintendent failed to instruct the board to apply the 2010 excess funds to the tax levy.  She also contends that at a board meeting on October 19, 2010, the superintendent acknowledged disregarding the four percent limitation.[1]  She requests that I appoint an interim superintendent and order the board to refund the excess fund balance to the taxpayers.  She also requests that I order the superintendent to apologize to the public for violating RPTL §1318(1) and for encouraging the board to violate the law.

Respondent contends that petitioner fails to establish the facts upon which she seeks relief.  She asserts that she acted in good faith and that the appeal must be dismissed as moot, 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).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Applications of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Application of Kolbmann, 48 id. 370, Decision No. 15,888).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).

Respondent contends that the appeal is untimely because petitioner did not commence the appeal until November 12, 2010, more than 30 days after the auditors presented information about the extent of surplus funds in excess of four percent to the board at its October 5, 2010 meeting.  She further contends that the appeal is also untimely because it was commenced three months after the tax levy was set in early August 2010 and more than four months after the close of the 2009-2010 fiscal year.

Petitioner seeks to remove the superintendent because of her conduct in January 2010 and on October 19, 2010.  The application is timely with respect to the conduct on the latter date of October 19, 2010 since it occurred within 30 days of the commencement of the appeal on November 12, 2010.  However, the alleged conduct in January 2010 cannot be considered because it occurred more than 11 months before the commencement of this appeal, and petitioner provides neither a reason for the delay nor an allegation that there was a delay in her discovery of the conduct at issue.

Nonetheless, the application must be denied for failure to comply with §277.1 of the Commissioner’s regulations.  Petitioner seeks the removal of the superintendent.  In a removal action, section 277.1(b) 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 application for her removal must be dismissed.[2]

To the extent petitioner seeks to have the district take action and refund the excess fund balance to the taxpayers, the appeal must also be dismissed for failure to join 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 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).  Here, petitioner named only the superintendent in the caption and failed to name the board of education as a respondent, even though the relief requested is an order directing action that can only be taken by the board.  The appeal, therefore, must be dismissed (seeAppeal of Lilly, et al., 42 Ed Dept Rep 307, Decision No. 14,863; Appeal of Goldin, 38 id. 317, Decision  No. 14,043).

In light of this disposition, I need not address the parties’ remaining contentions.  However, I remind the board that RPTL §1318(1) requires that, at the end of each school year, all unexpended, unreserved surplus funds in excess of four percent of the amount of the budget for the upcoming school year must be applied to reduce the tax levy (Appeal of Uy and Norden, 44 Ed Dept Rep 368, Decision No. 15,201; Appeals of Gorman, 43 id. 32, Decision No. 14,906).

THE APPLCIATION IS DENIED AND THE APPEAL IS DISMISSED.

END OF FILE.

[1] Petitioner maintains that for the last three school years, 2008 to 2010, the district has improperly retained an undesignated fund balance in excess of the four percent statutory limitation.

[2] I take judicial notice of information recently acquired by my Counsel’s Office that the superintendent retired from the district effective January 31, 2011.  Accordingly, since I only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest, if it were not dismissed for lack of notice, the application would be dismissed as moot.