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Decision No. 13,310

Appeal of CAROLYN M. WHALEN and BETTY EHLMAN, from action of the Board of Education of the West Islip Union Free School District regarding executive session meetings.

Decision No. 13,310

(December 15, 1994)

Guercio & Guercio, Esqs., attorneys for respondent, Ralph C. De Marco, Esq., of counsel

SOBOL, Commissioner.--Petitioners seek an order restricting the presence of a non-board member at executive sessions of the Board of Education of the West Islip Union Free School District ("respondent"). The appeal must be dismissed.

On May 18, 1994, the district held its annual budget vote and school board election for the 1994-95 school year. At that election, Susan Lipman was declared the winner of a board seat over the incumbent, Ronald P. Bova. However, Mr. Bova disputed the validity of the election and commenced an appeal to the Commissioner of Education.

Pending the result of that appeal, respondent board has allowed Mr. Bova to be present at all executive sessions of the board. These sessions are otherwise closed to the public. Mr. Bova's presence at these sessions includes access to information regarding personnel of the school district. Mr. Bova has also been provided with materials at no cost which are supplied to the board. Petitioners maintain that Mr. Bova's presence at executive sessions presents a breech of confidentiality and jeopardizes ongoing teacher negotiations. Respondent contends that Mr. Bova's presence at the meetings is beneficial to the board since the result of the underlying election remains in doubt.

Before addressing the merits of this appeal, it is necessary to address a procedural issue. Respondent contends that this appeal must be dismissed because petitioners failed to join Mr. Bova as a necessary party. Any party whose rights would be adversely affected by the favorable determination of an appeal must be joined as a necessary party (Appeal of Caputo, 34 Ed Dept Rep ___, Decision No. 13285; dated November 3, 1994; Appeal of Bonanno, 33 Ed Dept Rep 610; Appeal of Basile, 32 id. at 330). Petitioners have neither named nor served Mr. Bova. If petitioners are successful, the decision would adversely affect Mr. Bova's access to board executive sessions. Therefore, he should have been joined as a necessary party. Accordingly, this appeal must be dismissed for failure to join a necessary party.

With respect to the merits, respondent contends that Education Law '1708(3) and Public Officers Law '105(2) allow the board to authorize non-members to attend executive sessions. While I agree that those statutory provisions allow for the attendance by non-board members at executive sessions of the board, they do not allow for the disclosure of confidential information to non-members. Specifically, 8 NYCRR 84.3 provides that personnel records "shall be used only for the purpose of aiding the members of the board to fulfill their legal responsibilities ...". As Mr. Bova has no legal responsibilities with respect to personnel records, his access to them violates 8 NYCRR 84.3.

Additionally, respondent submits an advisory opinion from the Committee on Open Government which cautions against the access of materials relating to a particular student or students to Mr. Bova. Student confidentiality is required pursuant to the Family Educational Rights and Privacy Act (FERPA), 20 USC '1232(g). Although respondent maintains that Mr. Bova has not received information relating to student matters, the importance of this potential for conflict bears highlighting.

As a result, I admonish respondent for providing access to information regarding personnel to a non-board member with no legal responsibility for decision making. Rights of access to confidential personnel information and student information are set forth in 8 NYCRR 84.1-3 and 20 USC '1232(g), respectively, and I direct respondent to conform to that regulation and statute accordingly.