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Decision No. 13,238

Appeal of PAMELA CARDINAL from action of the Board of Education of the Clinton Central School District regarding teacher discipline.

Phillips, Ullman & Eannace, P.C., Esqs., attorneys for petitioner, Ralph J. Eannace, Jr., Esq., of counsel

Scolaro, Shulman, Cohen, Lawler, Burstein & Ferrara, P.C., Esqs., attorneys for respondent, Benjamin J. Ferrara, Norman H. Gross, Esqs., of counsel

Decision No. 13,238

(August 3, 1994)

SOBOL, Commissioner.--Petitioner appeals the failure of respondent Board of Education of the Clinton Central School District to bring disciplinary charges against a tenured teacher, Ms. Zucco. The appeal must be dismissed.

During the 1992-93 school year, petitioner's daughter, Marjorie, first came to Ms. Zucco's class after school for extra help in Spanish. During the summer of 1993, Marjorie attended summer school but did not live at home. Because she was staying out of the area with friends, Ms. Zucco drove her to and from summer school. Prior to the beginning of the 1993-94 school year, petitioner and Ms. Zucco met with the High School principal, Mr. Perretta, to discuss the appropriateness of Marjorie living with Ms. Zucco. The principal expressed the view that, because Marjorie was not a student in Ms. Zucco's class, there would be no appearance of impropriety, and therefore it was a private matter to be handled by petitioner's family and Ms. Zucco.

Petitioner and subsequently Marjorie's father decided to allow Marjorie to live with Ms. Zucco. Petitioner also signed a form enabling Ms. Zucco to authorize medical treatment for Marjorie. In September 1993, Marjorie stayed with Ms. Zucco full-time, and Marjorie's father gave money to Ms. Zucco for Marjorie's care.

On December 15, 1993, after becoming dissatisfied with her daughter's living arrangement with Ms. Zucco, petitioner wrote to the president of respondent board of education alleging unspecified improprieties regarding that arrangement. On January 24, 1994, respondent informed petitioner that after conducting its own investigation, it determined there was no action necessary by the board. This appeal followed. There is currently a divorce proceeding pending in State Supreme Court, Oneida County, which will address the custody and placement of Marjorie.

Petitioner asserts that her daughter's living arrangement with Ms. Zucco is improper and that disciplinary action should be taken against Ms. Zucco for allowing Marjorie to continue to reside with her. Petitioner further seeks an order directing respondent to return Marjorie to petitioner's home.

Respondent contends that the petition should be dismissed because petitioner failed to join Ms. Zucco as a necessary party, and the appeal is untimely. Respondent further argues the appeal must be dismissed because the custodial issue is outside the Commissioner's jurisdiction and because respondent has not abused its discretion in declining to take disciplinary action against Ms. Zucco.

Before reaching the merits, I will address the procedural issues. Petitioner requests that respondent take disciplinary action against Ms. Zucco. Because any decision on the merits would involve the rights of Ms. Zucco, she is a necessary party to this proceeding and, therefore, should have been joined as a party (Appeal of Sanfilippo, 33 Ed Dept Rep 500; Appeal of Chrisfield, 33 id. 463; Appeal of Carney, 33 id. 430; Appeal of Reed, et al., 33 id. 216). Because Ms. Zucco has not been joined as a party in this appeal, it must be dismissed.

Regarding the timeliness of this petition, an appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). In this instance, some of the alleged improper conduct occurred during the 1992-93 school year, and this appeal was commenced more than thirty days thereafter. To the extent that this appeal seeks to challenge actions which occurred during the 1992-93 school year, it is untimely and must be dismissed.

Concerning petitioner's request that I direct respondent to participate in Marjorie's removal from Ms. Zucco's home and her subsequent placement in petitioner's home, the record reflects that Marjorie's custody and placement is an issue currently being addressed by Supreme Court, Oneida County. To the extent that petitioner makes the same claims that are currently pending in that action, I will not entertain them (Appeal of a Child with a Handicapping Condition, 30 Ed Dept Rep 262; Appeal of Regent, et al., 27 id. 398; Appeal of the Board of Education of the North Bellmore UFSD, et al., 25 id. 333).

The appeal must also be dismissed on the merits. A board of education has broad discretion in determining whether disciplinary action against an employee is warranted (Appeal of Allert, 32 Ed Dept Rep 538; Appeal of Mitzner, 32 id. 15; Appeal of Magee, 30 id. 479). Where the board decides not to proceed, it must have a reasonable basis for concluding that disciplinary action is unwarranted (Appeal of Kantor, 31 Ed Dept Rep 319). The record reflects that the decision of petitioner and her husband to allow Marjorie to stay with Ms. Zucco was voluntary. Moreover, Marjorie's father continues to provide financial support for his daughter to remain in Ms. Zucco's home. Additionally, the record further reflects that Marjorie's grades and attendance have improved since residing with Ms. Zucco. With the exception of petitioner's unfounded accusations that the living arrangement is detrimental to Marjorie, there is no evidence of any improprieties or wrongdoing by Ms. Zucco. Accordingly, I find no basis for concluding that respondent has abused its discretion in this matter.