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Decision No. 12,712

Appeal of DR. ANTHONY J. PECORALE, JUDITH GAMARSH and CLAIRE AND DONALD MCKEON from action of the Board of Education of the Lindenhurst Union Free School District regarding abolition of a position.

Decision No. 12,712

(June 8, 1992)

Ruskin, Moscou, Evans & Faltischek, P.C., attorneys for petitioners, Mark S. Mulholland, Esq., of counsel

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

SOBOL, Commissioner.--Petitioners appeal from a determination of the Board of Education of the Lindenhurst Union Free School District in connection with the position of assistant superintendent of the district. The appeal must be dismissed.

On November 6, 1991 respondent adopted a resolution to abolish the assistant superintendent position. That resolution was amended on December 27, 1991 and further modified on January 28, 1992. The last amendment extended the effective date of the abolition of the position to February 5, 1992. On February 5, 1992, a resolution to reinstate the assistant superintendent position was rejected. This appeal ensued.

Before addressing the merits, it is necessary to review several procedural issues. First, respondent maintains that this appeal must be dismissed because it was not commenced within 30 days of the act complained of, as required by "275.16 of the Regulations of the Commissioner. Respondent contends the time to appeal must be measured from January 23, 1992, the date of the final version of the resolution. However, the time to appeal has traditionally been measured from the date that a board's decision has an impact upon an individual (Matter of Halayko, 23 Ed Dept Rep 384; Matter of Carbone, 21 id. 429). The instant proceeding involves respondent's decision to abolish a position effective February 5, 1992. The petition was served on March 4, 1992, which is within 30 days of the effective date of respondent's action. Accordingly, the appeal is timely.

Respondent also maintains that this matter must be dismissed because petitioners lack standing. The requirements for standing have evolved in three cases decided by the New York Court of Appeals: Dairylea Cooperative, Inc. v. Walkley, 38 NY2d 6, 377 NYS2d 451; Matter of Bradford Central School District v. Ambach, 56 NY2d 158, 451 NYS2d 654; and Matter of City of New York v. Civil Service Commission, 60 NY2d 436, 470 NYS2d 113. As summarized in Matter of City of New York v. Civil Service Commission, at pages 442-443, to have standing, a petitioner must establish that:

(1) the interest asserted must be arguably within the zone of interest to be protected by the statutory or constitutional provisions sought to be enforced; (2) the administrative decision for which review is sought must be shown to have a harmful effect upon the party asserting standing; and (3) there must be no clear legislative intent negating review.

Petitioners Gamarsh and McKeon are taxpayers of the district and parents of children attending district schools. The individual who was the assistant superintendent is not a party to this appeal. In this appeal, petitioners Gamarsh and McKeon are seeking to assert whatever rights the former assistant superintendent may have. Status as a resident of the district or as a parent of a student has long been held as not conferring capacity to seek judicial review of the actions of the board of education with respect to its employees (Appeal of Strober, 30 Ed Dept Rep 4; Matter of Fritz, et al., 9 id. 56; Matter of Lubell, 4 id. 71). Accordingly, petitioners Gamarsh and McKeon and the classes of residents and parents they wish to represent do not have standing, and their claims must be dismissed.

Petitioner Pecorale is the superintendent of the Lindenhurst Union Free School District. While Mr. Pecorale may not assert the rights of the former assistant superintendent, he does have standing to contest respondent's action, since he maintains that he has been personally aggrieved by that action. He alleges that respondent's abolition of the assistant superintendent position hinders his ability to perform his own duties.

Petitioner Pecorale contends that the board's decision lacks a rational basis. However, respondent maintains that during the 1990-91 and 991-92 school years, State aid to the Lindenhurst District was reduced by approximately $5,650,000, resulting in significant increased local property taxes. Faced with that fiscal problem, respondent has embarked on an ongoing program of cost savings and consolidation of services. Respondent further maintains that the abolition of the assistant superintendent position was part of that cost savings program and is rational in light of the fiscal problems of the district. A decision to abolish positions for economic reasons has been deemed to be appropriate (Young v. Bd. of Ed., 35 NY2d 31, 34, 358 NYS2d 709). Because the record demonstrates that respondent's action was motivated by fiscal constraints, I find that it is rational.

Petitioner Pecorale also maintains that respondent's decision violates Education Law "3012(1) in that respondent terminated the assistant superintendent without his recommendation. This contention has previously been reviewed and rejected (see Appeal of McGraw, 31 Ed Dept Rep ____, Decision No. 12696, dated May 6, 1992).

Petitioner Pecorale also contends that respondent's decision leaves the district without enough administrators. In light of the fact that the district currently employs nine building principals, five assistant principals, four district-wide coordinators, six department chairpersons and four central office administrators, petitioner has failed to sustain his burden of proof on this issue.

Petitioner Pecorale further contends that the decision to abolish the assistant superintendent position was a bad-faith attempt to prevent him from performing his duties as superintendent. To support that contention, petitioner alleges that the decision was reached after very little discussion by the board and despite contrary advice rendered by petitioner and the district superintendent. Although the record indicates that the resolution to abolish the assistant superintendent position was adopted after little discussion at the board's November 6 meeting, the issue was subsequently reviewed on December 27, 1991, January 23, 1992 and February 5, 1992. Accordingly, there is no basis to conclude that respondent has not given due consideration to the matter. In any event, there is no requirement that a board of education discuss an issue a specified length of time before acting. There is also no requirement that a board of education must accept the advice of its superintendent or the district superintendent regarding an issue before it. Petitioner has again failed to sustain his burden of proof (seeMatter of Van Orman, 22 Ed Dept Rep 359; Matter of Kelly, 20 id. 503).

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

Finally, I note that since July 1, 1991, a segment of the board and of the public has initiated approximately 15 appeals to the Commissioner of Education. These appeals arise from disagreements engendered by fiscal problems. I urge all parties to work together in this difficult situation, and to refrain from commencing appeals pursuant to Education Law "310 on matters more properly decided cooperatively by local boards and school administration.