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Decision No. 12,696

Appeal of GRACEMARIE McGRAW from action of the Board of Education of the Lindenhurst Union Free School District relating to abolition of a position.

Decision No. 12,696

(May 6, 1992)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a member of the Board of Education of the Lindenhurst Union Free School District, seeks an order annulling a resolution of the board that abolished the position of assistant superintendent in the district. The appeal must be dismissed.

At a meeting on December 27, 1991, respondent voted to abolish the position of assistant superintendent and to place the incumbent in that position on a preferred eligibility list in accordance with Education Law "2510.

In this appeal, petitioner alleges that the incumbent assistant superintendent, who was serving a probationary appointment, was terminated improperly from his position in violation of Education Law "3012(1) and school district policy which provide that a probationary employee may be terminated by a majority vote of the board on the recommendation of the superintendent. Petitioner alleges that the board's action was improper because the superintendent had recommended that the resolution in question not be adopted and that the services of the assistant superintendent not be terminated.

To the extent that petitioner seeks to assert whatever rights the incumbent assistant superintendent has, she lacks standing to bring this appeal. Petitioner's status as a member of respondent board of education does not endow her individually with an interest in the former assistant superintendent's rights. For the purpose of this appeal, petitioner's interest in this matter is essentially that of a resident of the district. (Matter of Richter, 14 Ed Dept Rep 382; Matter of Rainsford, 12 id. 49). Status as a resident of the district or as a parent of a student does not, in and of itself, confer capacity to seek judicial review of the actions of a board of education with respect to its employees (Appeal of Strober, 30 Ed Dept Rep 4; Matter of Sullivan, 25 id. 126; Matter of Limongelli, et al., 22 id. 556). Accordingly, this appeal must be dismissed because petitioner lacks standing.

Even if petitioner had the requisite standing, this appeal must also be dismissed on the merits. Petitioner relies upon Education Law "3012(1), which provides that the services of a probationary employee may be discontinued on the recommendation of the superintendent, by a majority vote of the board of education. Petitioner argues that because the superintendent did not recommend that the incumbent's position of assistant superintendent be abolished, the board was without authority to act. However, petitioner has misconstrued respondent's actions. On December 27, 1991 respondent voted to abolish the position of assistant superintendent, which resulted in the incumbent of that position losing his job. Such action is authorized by Education Law "2510(2). A decision to abolish a position pursuant to Education Law "2510(2) does not require a recommendation of the superintendent (see Matter of Branche, 11 Ed Dept Rep 311, 312; Matter of Welborn, 16 id. 267).

Petitioner contends that respondent abolished the position of assistant superintendent as an unspecified subterfuge. However, a board of education may abolish a position for the purpose of managing its affairs economically (Matter of Young v. Bd. of Educ., 35 NY2d 31, 358 NYS2d 709). Respondent maintains that it acted in this instance to effect necessary cost savings in the face of reduced financial aid being provided by the State and increased costs. Petitioner has offered no evidence to rebut that claim.

I have reviewed petitioner's other contentions and find them to be without merit.