Decision No. 17,052
* Subsequent History: Matter of Mindali v Elia; Supreme Court, Albany County; Judgment dismissed petition to review; November 1, 2017; Notice of appeal filed; December 6, 2017; Appeal not perfected. *
Appeals of CHESTER MINDALI from action of the Board of Education of the Roosevelt Union Free School District and Jennifer Toledo, regarding employment.
Decision No. 17,052
(February 27, 2017)
Wolin & Wolin, attorneys for petitioner, Alan E. Wolin, Esq., of counsel
Guercio & Guercio, LLP, attorneys for respondent Board of Education of the Roosevelt Union Free School District, Anthony J. Fasano, Esq., of counsel
ELIA, Commissioner.--In two separate appeals (Mindali I and Mindali II), petitioner challenges various actions of the Board of Education of the Roosevelt Union Free School District (“respondent”) with respect to petitioner’s employment. Because the appeals present similar issues of fact and law, they have been consolidated for decision. The appeals must be dismissed.
Petitioner was a probationary teacher employed by respondent district beginning in September 2009. Petitioner is certified to teach earth science and general science. In or about May 2012, petitioner was advised that the superintendent would not be recommending him for tenure. Thereafter, by letter to respondent board dated May 17, 2012, petitioner requested an extension of his probationary term to September 7, 2013. By virtue of a “Juul agreement,” petitioner and respondent district agreed to extend petitioner’s probationary term to September 7, 2013.
At the end of the 2012-2013 school year, respondent district abolished its earth science program and, consequently, abolished a position in the science tenure area and the least senior teacher therein, Cody Owens. Respondent district reorganized the remaining teachers and courses for the 2013-2014 school year, including the assignment of Dr. Spielmann, a probationary teacher, to teach physics and chemistry. In or about March 2014, the superintendent decided not to recommend Dr. Spielmann for tenure and respondent board, therefore, voted to terminate him, effective June 30, 2014.
In the spring of 2014, respondent district determined that it once again needed to reorganize the science program and abolish a general science teacher position. After Dr. Spielmann’s termination, petitioner was the least senior teacher in the science tenure area and, thus, his position was abolished and he was transferred within the science tenure area to the open physics/chemistry position for the 2014-2015 school year. By letter dated April 22, 2014, petitioner was advised that he did not hold the requisite certification to teach physics and chemistry and, therefore, his position would be suspended, effective the first day of the new school year, pending an investigation and discussions with respondent board. Thereafter, by letter dated August 29, 2014, petitioner resigned from his position, stating that he was forced to resign because of an Education Law §3020-a hearing and lack of certification to teach chemistry and physics.
At a regularly scheduled meeting on August 21, 2014, respondent board voted to grant Karen Lang a probationary appointment in the science tenure area, effective August 28, 2014. The record indicates that Ms. Lang holds a Biology 7-12 certification and was assigned to teach classes at both the high school and the district’s alternative learning academy (“ALA”), an after-school option for at-risk students. Thereafter, petitioner commenced an Article 78 proceeding in Nassau County Supreme Court seeking an order and judgment annulling and rescinding petitioner’s resignation and seeking reinstatement to his former position with back pay and benefits. By decision and order dated November 10, 2015, the petition was dismissed under the doctrine of primary jurisdiction. The first appeal, Mindali I, ensued.
During the summer of 2015, following a restructuring, respondent district publicly posted a vacancy for a general science position. On October 15, 2015, Jennifer Toledo was appointed as a substitute until the position was filled. On January 14, 2016, Ms. Toledo was appointed to fill the general science position, effective February 1, 2016. Thereafter, the second appeal, Mindali II, ensued.
Petitioner contends in Mindali I that his resignation should be rescinded as it was procured as a result of respondent district’s deception and misrepresentation. Petitioner also contends that Ms. Lang was hired in violation of his seniority and tenure rights. In Mindali II, petitioner further contends that, at the time of his resignation, he should have been placed on the preferred eligibility list (“PEL”) pursuant to Education Law §§2510 and 3013, and that he is entitled to the position currently held by Ms. Toledo. Petitioner seeks to be reinstated to his former position with back pay and benefits nunc pro tunc to August 29, 2014.
Respondent maintains that its actions were, in all respects, legal and proper, that petitioner’s resignation was voluntary, and that neither the hiring of Ms. Lang nor Ms. Toledo was in violation of petitioner’s seniority or tenure rights. Respondent also maintains that the reorganizing of positions within the science tenure area was in accordance with the law and that the district was not only entitled to bring disciplinary charges against petitioner in accordance with Education Law §3020-a, but that it was required to do so. Respondent also raises several procedural defenses, including timeliness, improper service, failure to join necessary parties, and election of remedies.
The appeals must be dismissed as 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). Petitioner’s resignation occurred on August 29, 2014 and, thereafter, petitioner brought an Article 78 proceeding that raised claims identical to those raised in Mindali I. In circumstances similar to those presented here, where a petitioner has first commenced an action in the courts which has been dismissed on some basis not involving the merits, the date of dismissal is generally regarded as the equivalent of the date of the "making of the decision or the performance of the act complained of" in §275.16 of the Commissioner’s regulations. Previous decisions have allowed an appeal to the Commissioner within 30 days after such dismissal (Appeal of Alexander and Gonzalez, 54 Ed Dept Rep, Decision No. 16,731; Appeal of Ferencik, 49 id. 142, Decision No. 15,981, judgment granted dismissing petition to review, September 15, 2011, Sup.Ct., Albany Co.; Appeal of Devente and Jesenof, 48 id. 150, Decision No. 15,822). Petitioner’s Article 78 proceeding was dismissed on November 10, 2015 and the decision was served with Notice of Entry on November 23, 2015. However, Mindali I was not commenced until January 19, 2016. The petition lacks any showing of good cause for this delay, thus Mindali I must be dismissed as untimely.
Mindali II must also be dismissed as untimely. To the extent petitioner seeks to annul his resignation, tendered in August 2014, the appeal is untimely for the same reasons as Mindali I, as it was not commenced until more than three months later. To the extent petitioner claims he should have been placed on the PEL following his resignation, that claim must also be dismissed as untimely. Even if petitioner had a basis to assume that he retained his PEL rights upon resignation, the record indicates that, at a hearing in June 2015, petitioner acknowledged that he was not being placed on the PEL; the 30-day period for commencing an appeal therefore expired, at the latest, in July 2015 (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582; Appeal of Bratge, 40 id. 180, Decision No. 14,454). To the extent petitioner challenges the appointment of Ms. Toledo to the general science position on January 4, 2016, effective February 1, 2016, the appeal should have been commenced within 30 days of the date Ms. Toledo commenced service, that is by March 2, 2016 (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582). As Mindali II was not commenced until May 2, 2016, it must be dismissed as untimely.
Both appeals must also be dismissed 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).
In Mindali I, petitioner seeks reinstatement to his former tenured position, which he appears to argue is being filled, at least partially, by Karen Lang. Additionally, respondent indicates that such reinstatement would require the district to either reduce or abolish a position in the science tenure area. If petitioner’s request for reinstatement were granted, the rights of Ms. Lang, as the least senior teacher in the science tenure area, would be affected, thus making her a necessary party to this action. As Ms. Lang is neither named in the action nor is there evidence in the record that she was personally served, petitioner’s claims must be dismissed for failure to join Ms. Lang, a necessary party.
In Mindali II petitioner seeks appointment to the position held by Ms. Toledo. If petitioner’s request for relief were granted, the rights of Ms. Toledo would necessarily be affected, making her a necessary party to this action. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877). Petitioner attempted to serve Ms. Toledo by certified mail, rather than by personal service. Because the petition was not properly served upon Ms. Toledo, in accordance with §275.8(a) of the Commissioner’s regulations, petitioner failed to properly join her. Therefore, like Mindali I, Mindali II must also be dismissed for failure to join a necessary party (Application of Murray, 56 Ed Dept Rep, Decision No. 17,002).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEALS ARE DISMISSED.
END OF FILE
 The district indicates that positions at the ALA are not tenure or seniority bearing positions. Petitioner provides no evidence to dispute this.