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Decision No. 12,763

Appeal of PHYLLIS GONZALEZ, VELMA HILL, PETER ROSE and DOROTHY RYAN from action of the City School District of the City of New York and Joseph A. Fernandez, Chancellor, relating to supersession of the Board of Education of Community School District No. 2.

Decision No. 12,763

(July 27, 1992)

Lawrence E. Becker, Esq., attorney for respondents, Christine J. Kicinski, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioners, members of the Board of Education of Community School District No. 2 (CSD 2) in New York City, seek an order overturning a decision of the Board of Education of the City School District of the City of New York which upheld an order of supersession issued by Chancellor Fernandez pursuant to Education Law '2590-l. The appeal must be dismissed.

A vacancy for the position of district administrator of special education (DASE) in CSD 2 was initially advertised in April 1988. By letter dated March 30, 1989 the Division of Human Resources (DHR) of the New York City Board of Education (Board) advised the superintendent of CSD 2 of the status of several unfilled supervisory positions in CSD 2, including the position of DASE. The superintendent was urged to take immediate action to fill those positions.

By letter dated November 9, 1990, DHR informed the superintendent that, pursuant to Education Law '2573(2), supervisory vacancies must be filled within six months of the existence of the vacancy or by the beginning of the next school year, if the board so elects. Because of significant delay in filling five supervisory positions in CSD 2, the superintendent was advised that the selection for those vacancies was to be completed by December 20, 1990.

When the DASE position was originally advertised in April 1988, 21 applicants responded. Not until the early part of 1991 did a screening committee select ten candidates to be interviewed. The interviews were conducted and on or about March 1991, the committee recommended five candidates to the superintendent. By letter dated March 17, 1991 the DHR again informed the superintendent of the need to fill the vacant DASE position. The superintendent subsequently interviewed the five candidates recommended by the screening committee and recommended two applicants for the DASE position. The superintendent indicated that he considered one of the individuals to be the superior candidate.

The CSD interviewed the two recommended candidates and on July 16, 1991 voted to reject both. Five members of CSD 2 then indicated that they wanted to appoint an individual who had been serving as the interim acting DASE. The superintendent stated that based on his assessment of that individual, he could not recommend her. The CSD then directed the superintendent to present the other three candidates recommended by the screening committee. The superintendent stated that he could not recommend any of those individuals, but agreed to set up interviews by the CSD of those individuals. The superintendent also informed the board that it was his belief that, pursuant to Education Law '2573(1)(b), the CSD could not appoint a candidate to the DASE vacancy without his recommendation. The CSD interviewed the candidates and on July 24 passed a resolution reaffirming their support for the interim acting DASE.

Both the CSD and the superintendent wrote respondent Fernandez requesting his intervention in the impasse. In a letter dated August 9, 1991 respondent Fernandez informed the president of CSD 2 and its superintendent that district regulations provide a system of checks and balances wherein the local community school board appoints personnel upon the recommendation of the superintendent. Thus, neither the CSD nor the superintendent can effectuate an appointment independently of the other. The Chancellor expressed his concern that the current impasse had serious implications and potential consequences and indicated that the law provided him with a mechanism to intervene. He then directed the CSD to select an individual to fill the position of DASE no later than August 30, 1991.

When the DASE position remained vacant, respondent Chancellor ordered CSD 2 and its superintendent to meet with him on September 23, 1991. No agreement was reached by the parties at that meeting. In a letter dated October 2, 1991 respondent Chancellor advised CSD 2 that, in accordance with the authority vested in him pursuant to Education Law '2590-l, he was superseding CSD 2 for the sole purpose of appointing a DASE. Respondent Chancellor established a selection process that involved parental involvement, parental recommendations to an administrator and recommendations by the administrator to trustees for consideration and appointment.

On October 15, 1991, CSD 2 appealed to respondent Board seeking a decision annulling the Chancellor's order of supersession. That appeal was dismissed on January 22, 1992.

Petitioners attempted to commence this appeal by service of a defective petition on March 17, 1992. A proper petition was subsequently served on March 31, 1992.

Before reviewing the merits of this appeal, it is necessary to address a procedural issue. In this appeal, petitioners challenge a decision of the Board of Education of the City School District of the City of New York rendered in an appeal brought by petitioners pursuant to Education Law '2590-g(10). Education Law '2590-g(10)(c) and Regulations of the Commissioner of Education '113.25 require that an appeal to challenge a determination of the central board, when it sits as an appeal board, must be instituted within fifteen days of issuance of the city board's order. The decision of the city board was issued on January 22, 1992, but petitioners did not commence this appeal until March 31, 1992. Even if this appeal was deemed to have been commenced when petitioners served the first defective petition on March 17th, the appeal is still untimely and must be dismissed.

Regarding the merits, the petition in this matter is not entirely clear. However, it appears that petitioners maintain that the order of supersession issued by respondent Chancellor was illegal because the Chancellor was without authority to issue such an order and the Chancellor did not try to effect conciliation between the parties before issuing such an order. Education Law '2590-l(1) provides:

If, in the judgment of the chancellor any community board fails to comply with any applicable provisions of law, by-laws, rules or regulations, directives and agreements, and after efforts at conciliation with such community board have failed, he may issue an order requiring the community board to cease its improper conduct or to take required action and consistent with the provisions of this article and the educational and operational policies of the city board, may enforce that order by the use of appropriate means, including:

(a) supersession of the community board by the chancellor or a trustee appointed by him with respect to those powers and duties of such community board deemed necessary to ensure compliance with the order; and

(b) suspension or removal of the community board or any member or members thereof.

That section grants the Chancellor the authority to supersede a community school board when it fails to comply with any provision of law. Pursuant to Education Law '2573(2), CSD 2 and its superintendent were obligated to fill the DASE vacancy within six months. Despite that requirement, the position remained vacant for approximately four years without CSD 2 complying with its obligation under that statute. In light of that failure, the Chancellor was authorized to supersede CSD 2.

Education Law '2590-l(1) does require that any supersession be preceded by efforts at conciliation. On the record before me, it appears that respondent Chancellor did attempt to effect conciliation at a meeting with CSD 2 and its superintendent on September 23, 1991. Accordingly, I find no basis to overturn the decision to supersede CSD 2 on the appointment to fill the DASE vacancy.

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