Decision No. 13,165

(April 29, 1994)

SOBOL, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of New York ("respondent") to appoint Marc Harris as principal of a school within the district. The appeal must be dismissed.

The Regulations of the Chancellor of the New York City schools establish a three level process for the selection of school principals within a community school district. Level I is a committee comprised of the community superintendent or designee (who acts as a non-voting chairperson), a supervisor, two teachers from the school and between six to ten parents of students attending the school. Level II is the community superintendent who recommends at least two candidates to Level III. Level III is composed of the community school board which considers the Level II recommendations, has discretion to interview those candidates and ultimately selects one for appointment.

Community School District No. 31's Office of Equal Opportunity ("OEO") directed the chairpeople of all Level I committees to interview up to fifteen candidates, in lieu of the ten specified in the Chancellor's regulations. On February 7, 1992, the Level I committee agreed to interview ten candidates. That committee later added four additional candidates, including Marc Harris. After the interviews, five candidates, including Mr. Harris, were recommended to Level II. The superintendent at Level II then recommended two candidates, Mr. Harris and Ms. Fonallosa, to the community board for Level III action.

On February 28, 1992, a member of the Level I committee contacted three members of the Level III committee. On March 9, 1992, a majority of the Level III committee selected Mr. Harris as the candidate for principal. Responding to a complaint that a Level I member attempted to improperly influence the Level III decision, respondent directed its Office of Special Investigations ("OSI") to investigate the allegations of impropriety. On April 14, 1992, after interviewing all community school board members, OSI concluded only three members had been contacted and that the contact did not influence their decision to recommend Mr. Harris for the position. On April 23, 1992, then New York City Chancellor Joseph Fernandez denied a grievance filed by two parent members from the Level I committee challenging the selection process.

On July 27, 1992, petitioner appealed Chancellor Fernandez's decision to the community school board. On October 16, 1992, the appeal panel of the community school board directed the OEO to conduct an investigation into petitioner's discrimination complaint. On November 19, 1992, the OEO report concluded that the selection process did not appear discriminatory. On April 14, 1993, the community school board issued an interim decision, highlighting deficiencies in the selection process. In its report of the decision, the board specifically ordered that the Level I committee member who contacted the Level III board members be prohibited from participating in any selection processes for three years and that the ISO be informed of two board members' failure to report the contact. The report also recommended that the Chancellor issue a letter of censure against a Level III board member found to have made inappropriate remarks. The report further recommended amending the Chancellor's regulations to prevent future abuses. However, the report did not find the improprieties sufficient to void the selection process. Instead, the report ordered the matter remanded to the Chancellor to determine what would be in the best interests of the students and whether Mr. Harris' selection should be voided.

On April 26, 1993, the Chancellor found that since Mr. Harris had been serving in the position for more than a year, the voiding of his appointment would be detrimental to the students. On September 22, 1993, the board upheld the Chancellor's decision allowing Mr. Harris to retain his appointment. This appeal ensued.

Petitioner seeks to have me declare the selection process null and void. Respondent contends that although it is clear the process was flawed, it did not affect the outcome. Respondent further urges that since the determination not to invalidate the appointment was not arbitrary and capricious, it should not be set aside.

As a threshold matter, the appeal must be dismissed because petitioner has failed to join Mr. Harris, the individual appointed as principal, as a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a necessary party (Appeal of Chaney, 33 Ed Dept Rep 12; Appeal of Basile, 32 id. 330; Appeal of Osterman, 30 id. 290; Appeal of Como, 30 id. 214; Appeal of Fitzpatrick, 30 id. 124; Appeal of Giglia, et al., 27 id. 453). Petitioner alleges that Ms. Fonallosa rather than Mr. Harris should be the principal at P.S. 4. If petitioner prevails, Mr. Harris' appointment would be voided. Therefore, the appeal must be dismissed for failure to join Mr. Harris as a necessary party.

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits. I will not substitute my judgment for the Board of Education of the City School District of the City of New York when the board sits as an appeal board, unless the challenged decision is arbitrary, capricious or in some manner contrary to law or the dictates of sound educational policy (Matter of Boards of Education of Community School District 25 and 26, 23 Ed Dept Rep 298). The record reflects that respondent has thoroughly investigated petitioner's allegations that the selection process was tainted and that Mr. Harris is therefore not the appropriate candidate for the position. The ISO investigated the complaints alleging inappropriate contact of Level III committee members and concluded that such contact occurred. They further concluded, however, that this contact did not involve the majority of the committee or affect its decision. This conclusion was subsequently supported by the Chancellor. Finally, the improper conduct was not ignored. The record reflects that action has been taken to discipline the individual involved in the improper conduct. Furthermore, recommendations for modifying the selection process have also been made. Additionally, the record reflects that the Level I committee was authorized to interview more than ten candidates. Clearly, then, the subsequent referral of Mr. Harris to Level II was not improper, and his final selection at Level III was likewise authorized.

Because the selection process was not inherently flawed and action was taken regarding specific improprieties, respondent's action can hardly be deemed arbitrary or capricious merely because it was not the specific result sought by petitioner.

I have reviewed petitioner's other claims and find them without merit.

 

THE APPEAL IS DISMISSED.

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