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Decision No. 13,151

Appeal of ELLEN SIRACUSA and REGINA MONTANA from action of the Board of Education of the Croton-Harmon Union Free School District relating to the dismissal of a nontenured teacher.

Decision No. 13,151

(April 8, 1994)

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal the failure of the Board of Education of the Croton-Harmon Union Free School District ("respondent") to grant Vincent J. Altamuro tenure as an elementary principal. The appeal must be dismissed.

Respondent appointed Mr. Altamuro to a three-year probationary term as an elementary principal effective September 1, 1989 and terminating August 31, 1992. By letter dated March 18, 1992, respondent's superintendent advised Mr. Altamuro that he intended to recommend against the grant of tenure to him at respondent's board meeting scheduled for April 20, 1992. Upon receipt of this letter, Mr. Altamuro requested a statement of the reasons for the superintendent's negative recommendation. The superintendent provided Mr. Altamuro with an explanation of his recommendation in a letter dated March 26, 1992.

On April 20, 1992, respondent reviewed the superintendent's recommendation against tenure, the statement of reasons provided to Mr. Altamuro for such recommendation as well as Mr. Altamuro's response. Respondent took no further action. This appeal ensued.

Before discussing the substantive issues raised by this appeal, I will address respondent's two procedural contentions. First, respondent contends that the appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days of the decision or act complained of. Failure to commence an appeal in a timely manner may be excused by the Commissioner for good cause shown (8 NYCRR 275.16). Petitioners challenge respondent's failure to grant Mr. Altamuro tenure on April 20, 1992, but did not commence this appeal until June 22, 1992, approximately two months later. Since petitioners offer no excuse for the lateness of their appeal, it must be dismissed as untimely (Appeal of Wood, 32 Ed Dept Rep 470).

Respondent also contends that petitioners lack standing to bring this appeal because they are not aggrieved within the meaning of Education Law '310. To have standing to bring an appeal pursuant to that section, a petitioner must be aggrieved in the sense of suffering personal damage or injury to his or her rights (Appeal of Flint, 26 Ed Dept Rep 84; Matter of Hassid, 24 id. 281; Matter of Feiss and Dawkins, 22 id. 401). Status as a resident of a school district or as a parent of a student does not, in and of itself, confer standing to seek review of the action of the board of education with respect to its employees (Matter of Shanks, et al. v. Donovan, et al., 32 AD2d 1037; Appeal of Reed, et al., 33 Ed Dept Rep 216; Appeal of Pecorale, et al., 31 id. 493). Petitioners are apparently residents of the Croton-Harmon district who have children attending the schools of the district. However, there is no claim that they were personally affected by respondent's failure to grant Mr. Altamuro tenure. Accordingly, petitioners lack standing to bring this appeal, and their claim must be dismissed on that basis as well.

The appeal must also be dismissed on the merits. Petitioners contend that respondent's failure to grant Mr. Altamuro tenure somehow violates the "Compact for Learning". Respondent denies that it has violated the Compact for Learning and contends that the Compact for Learning does not affect personnel decisions, such as whether to grant tenure to a probationary employee.

A superintendent is afforded wide discretion to determine whether or not to recommend a teacher or administrator for tenure (Albaum v. Carey, 310 F. Supp. 594; Matter of Yanoff, 15 Ed Dept Rep 282). Absent a recommendation by the superintendent pursuant to Education Law '3012, a board of education is legally incapable of granting tenure (Matter of Yanoff v. Commissioner of Education, 6 AD2d 919; Appeal of Clancy, 29 Ed Dept Rep 28; Matter of Leviness, 18 id. 213). The record before me does not indicate that the superintendent abused his discretion in recommending against the grant of tenure to Mr. Altamuro. Moreover, in an appeal to the Commissioner of Education, the petitioner bears the burden of establishing a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150). Petitioners offer no legal basis to support their claims that respondent has violated any provision of law in connection with this matter.