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Decision No. 16,261

Appeal of ANDREA ELLEN PARRIS from action of Community School District 5 of the City School District of the City of New York and Superintendent Gale Reeves regarding a probationary appointment.

Decision No. 16,261

(July 22, 2011)

Eisner & Mirer, P.C., attorneys for petitioner, Eugene G. Eisner, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent New York City Department of Education, Celine Chan, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of Community School District 5 (“CSD 5”) of the City School District of the City of New York (“DOE”) and Superintendent Gale Reeves (collectively “respondents”) to extend her probationary appointment for an additional year.  The appeal must be dismissed.

On January 2, 2008, petitioner was appointed to a three-year probationary term as a principal at Choir Academy of Harlem (“Choir Academy”).  Choir Academy is a public school serving students in grades six through 12 and is located in CSD 5.

Petitioner’s probationary term was scheduled to end on January 2, 2011.  According to respondents, based on concerns regarding “the lack of consistent and stable progress in Choir Academy during the first three years of [p]etitioner’s probationary term,” Reeves “decided to grant [p]etitioner another year of probationary service in order to give [her] a further opportunity to demonstrate her ability to stabilize and steadily improve Choir Academy’s performance across all grade levels, to exhibit consistency in her leadership, and to raise student achievement and academic rigor.”

Accordingly, on or about December 10, 2010, Reeves presented petitioner with an “Extension of Probation Agreement” (“agreement”), which petitioner signed on December 22, 2010.  The agreement provides that petitioner’s probation be extended from January 2, 2011 to January 2, 2012 and states that petitioner “waives any possible rights, claims or causes of action for tenure as a principal arising on or prior to January 2, 2011.”  The agreement also states:

[Petitioner] waives any rights, claims or causes of action and agrees not to commence any claims, motions, actions or proceedings of whatever kind against the Chancellor, the Superintendent, or the Department of Education of the City of New York, or any agents or employees for any actions taken or not taken, or statements made or not made by them prior to the date of this agreement.

The agreement further states that petitioner entered into it “freely, knowingly and openly, without coercion or duress” and that she “had an opportunity to seek legal counsel throughout these proceedings.”

As noted above, petitioner signed the agreement on December 22, 2010.  However, below her signature, petitioner also included hand-written “Signature Stipulations” (“stipulations”) which included the following:  “I disagree with the explanations given/provided for extension of probation.  I am signing and concurrently requesting an appeal of the extension.”  This appeal ensued.  The record indicates that petitioner has continued to serve as probationary principal of Choir Academy.

Petitioner asserts that respondents’ decision to “deny [her] tenure” and extend her probationary term was “made in error.”  She requests that I “overturn the decision ... which extended her probation” and “award her tenure.”  Respondents argue that their actions were in all respects proper and that the appeal must be dismissed as premature and moot.  Respondents also contend that petitioner lacks standing and has failed to state a cause of action, to properly serve the petition on both named respondents, and to join DOE as a necessary party.

Petitioner submits several newspaper articles to support her appeal.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such articles for the veracity of their content.

Respondents object to petitioner’s reply, which was served via email instead of by personal service or mail as required by §275.8(b) of the Commissioner’s regulations.  As respondents correctly note, the Commissioner’s regulations do not authorize service via email.  Accordingly, I have not considered petitioner’s reply (seeAppeal of S.Z., 43 Ed Dept Rep 110, Decision No. 14,938).

The appeal must be dismissed.  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).  In her prayer for relief, petitioner requests that I “[o]verturn the decision of the School District which extended her probation and award her tenure....”    In New York City, the Chancellor serves as the superintendent and chief executive officer of the DOE (Education Law §2590-h).[1]  Under Education Law §2590-h(17), the Chancellor possesses the powers and duties of a board of education of a city school district as described in Education Law §2554, not inconsistent with the provisions of Article 52-A of the Education Law or the educational policies of the city board of education.  Such powers and duties include the power “to appoint ... principals ... as the [board of education] shall determine necessary for the efficient management of the schools....” (Education Law §2554[2]).  Likewise, Education Law §2573(1)(b) provides that certain supervisory staff, including principals, authorized pursuant to Education Law §2554 “shall be appointed by the board of education, upon the recommendation of the superintendent or chancellor of schools, for a probationary period of three years.  The service of a person appointed to any of such positions may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education.”  Accordingly, because the Chancellor stands in the position of a board of education with respect to such appointments, the Chancellor is a necessary party and petitioner’s failure to name and serve the Chancellor necessitates dismissal of this appeal (seee.g.Appeal of Lilly, 42 Ed Dept Rep 307, Decision No. 14,863 [in appeal seeking to nullify board’s budget motion, a ruling in petitioner’s favor would affect board’s authority and petitioner’s failure to join board necessitates dismissal]).

Moreover, to the extent petitioner objects to the alleged “decision to deny [her] tenure,” such claim must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Contrary to petitioner’s assertions, the record indicates that no final determination has yet been made regarding her tenure status.  Rather, pursuant to the agreement, “[n]o later than January 2, 2012, [petitioner] shall either be granted tenure upon satisfactory completion of the additional probationary period or denied completion of probation and discontinued and/or discontinued prior thereto.”  The agreement also states that “the decision to either grant or deny tenure at a date no later than January 2, 2012, shall be based upon an evaluation of [petitioner’s] probationary service during the additional one year of probationary service herein granted and also upon an evaluation of [petitioner’s] probationary service rendered prior to January 2, 2011.”  Since this appeal was commenced prior to a final decision regarding tenure, I find that this claim is premature and must be dismissed (seeAppeal of Rackley, 35 Ed Dept Rep 5, Decision No. 13,445).

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

THE APPEAL IS DISMISSED.

END OF FILE

[1] Dennis M. Walcott is currently the Chancellor of the New York City Department of Education.