* Subsequent History: Matter of Eskridge v Elia; Supreme Court, Albany County; Judgment dismissed petition to review; May 26, 2017. *

Appeal of MEREDITH ESKRIDGE, from action of the Board of Cooperative Educational Services for Nassau County and Dr. Thomas Rogers, District Superintendent, and Amanda Pirolo, regarding preferred eligibility rights.

Decision No. 16,932

(July 27, 2016)

New York State United Teachers, attorneys for petitioner, Maria Elena Gonzales, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, David F. Kwee, Esq., of counsel

Certilman Balin Adler & Hyman, LLP, attorneys for respondent Amanda Pirolo, Tony G. Dulgerian, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the denial by the Board of Cooperative Educational Services of Nassau County (“respondent” or “respondent board”) and Dr. Thomas Rogers, its District Superintendent (“respondent Rogers”) (collectively “respondents”), of her request to be placed on the preferred eligibility list for a position as a teacher of deaf and hard of hearing.  The appeal must be dismissed.

Petitioner holds permanent certification in the special tenure areas of Deaf and Hard of Hearing, Students with Disabilities (Grades 1-6), and in Childhood Education (Grades 1-6).  On October 14, 2008, respondent granted petitioner a probationary appointment as a teacher of the deaf.  At its August 4, 2011 meeting, respondent board informed petitioner that it would grant petitioner tenure in the position of teacher of the deaf, effective October 14, 2011.

By letter dated August 11, 2011, respondents’ notified petitioner that the Bethpage Union Free School District (“Bethpage UFSD”) was “taking back” the program of hearing impaired services from respondents and that her seniority, tenure and sick days would move with her.  As a result, petitioner’s position with BOCES was terminated effective August 18, 2011.  On August 23, 2011, the Board of Education of Bethpage UFSD appointed petitioner to tenure effective October 12, 2011, in the special subject tenure area of Education of Deaf Children.  On August 25, 2011, the Board of Education of Bethpage UFSD also appointed petitioner to a two-year probationary appointment in the general special education tenure area.

On January 3, 2012, respondent board appointed Amanda Pirolo to the position of Teacher-Deaf & Hard of Hearing - Hearing & Vision Services-Special Education Program.  On February 28, 2012, the Board of Education of Bethpage UFSD terminated petitioner’s .4 probationary appointment in the special education tenure area, reducing her position to a .6 tenured part time position in the special subject tenure area of education of deaf children.  This appeal ensued.  On or about May 1, 2012, petitioner commenced an Article 78 proceeding in Nassau County Supreme Court.  By decision dated May 29, 2013, the Supreme Court dismissed the petition on jurisdictional grounds and referred the issues in petitioner’s application to the Commissioner of Education for determination.

Petitioner alleges that respondent violated Education Law §3014-b by failing to place her on the preferred eligibility list and recall her to a position as teacher of the deaf in respondent’s “Deaf & Hard of Hearing-Hearing & Vision Services-Special Education” Program and ordering respondent to recall and reinstate petitioner to such position, together with back pay, seniority and the costs and disbursements of this proceeding.

Respondent asserts that petitioner failed to properly serve Pirolo with a copy of the petition.  Respondent requests that Pirolo’s name be removed from the petition because she has not been employed by respondent as a teacher of the deaf since 2012.  Additionally, respondent contends that petitioner has failed to name the current holder of such position in the caption and therefore she has failed to join necessary parties.  Respondent also asserts that the appeal is untimely and that petitioner fails to state a claim.

First, I must reject respondents' contention that the appeal is untimely.  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).  An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within 30 days of receipt of the determination (Appeal of Ferencik, 49 Ed Dept Rep 142, Decision No. 15,981; Appeal of Devente and Jesen, 48 id. 150, Decision No. 15,822; Appeal of Markow-Brown, 45 id. 315, Decision No. 15,333).

In this instance, the Supreme Court dismissed petitioner’s Article 78 proceeding under the doctrine of primary jurisdiction on May 29, 2013.  The record reveals that petitioner commenced this appeal by serving the original petition on respondents on June 26 and 27, 2013. On July 1, 2013, petitioner filed the petition with my Office of Counsel.  By letter dated July 3, 2013, my Office of Counsel returned the petition because it failed to contain the required notice pursuant to Commissioner’s regulations §§275.11 and 276.1 and advised petitioner that if the corrected version was served and filed within two weeks of July 3, 2012, the appeal would be deemed to have been initiated on the day a copy of the returned petition was personally served upon respondents.  Petitioner served a corrected petition on Pirolo on July 11, 2013, and on respondent Rogers and respondent board on July 12, 2013 and filed the corrected petition with my Office of Counsel on July 12, 2013, within two weeks from receipt of the letter from my Office of Counsel dated July 3, 2013.  Therefore, pursuant to the terms of the July 3, 2013 letter, the appeal will be deemed to have been initiated on the date a copy of the returned petition was personally served upon respondents.  Since the original petition was served on respondents on June 26 and 27, which is within 30 days of the Supreme Court’s decision, I will not dismiss this appeal as untimely.

However, I must dismiss that part of the appeal relating to Amanda Pirolo as moot.  The Commissioner will 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 (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Since Pirolo has not been employed by respondent since June 2012, the appeal against Pirolo must be dismissed as moot because no meaningful relief can be granted as against her.

I must also dismiss the remainder of the appeal for failure to join 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, Pirolo’s answer reveals that she has not been employed by respondent as a teacher of the deaf since June 2012 and that Paula Hastings was appointed by respondent to such position on or about October 23, 2012.  At the request of my Office of Counsel, respondent provided a copy of the minutes from the October 23, 2012 board meeting, where Hastings was appointed to said position, effective October 15, 2012.

While petitioner asserts that she was not aware of Hastings’ appointment, I find this unpersuasive.  Petitioner is represented by counsel in this matter and this information is reflected in the minutes from respondent board’s October 23, 2012 meeting, which are publicly available on respondent’s website.[1]  Since this appeal was commenced in July 2013, more than eight months after Hastings was appointed and Pirolo was no longer serving in the position at that time, and Hastings would be adversely affected by a determination in favor of petitioner, I find that the appeal must be dismissed for failure to join Hastings as a necessary party.[2]

Finally, to the extent that petitioner seeks costs and disbursements for this proceeding, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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