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Decision No. 13,324

Appeal of HELENE F. SIVAK, M.D. from action of the Board of Education of the Hendrick Hudson Central School District regarding the location of a hearing pursuant to Education Law '3020-a.

Decision No. 13,324

(December 28, 1994)

Raymond G. Kuntz, P.C., Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals the decision of the Board of Education of the Hendrick Hudson Central School District ("respondent") regarding the location of a '3020-a hearing. The appeal must be dismissed.

After Dr. Joanne Falinski was served with disciplinary charges, she requested an open hearing pursuant to Education Law '3020-a. On May 11, 1994, respondent determined that the hearing would be held at its central office board room. On May 12, 1994, petitioner spoke with respondent's superintendent to express her concern that the room was not large enough to accommodate all residents who might wish to attend. In response, respondent determined that access to the hearing would be decided by a lottery system. On May 15, 1994, respondent conducted a lottery at which 26 individuals and 9 alternates were selected to attend. Space was also reserved for members of the press. The hearing began on May 19, 1994. Petitioner was present and the hearing was adjourned for one week. On May 26, 1994, the hearing was reconvened with petitioner again present. This appeal followed. As of the date of this decision, the hearing has not been completed, and the issue is thus ripe for disposition.

Petitioner asserts that the hearing room is inadequate and seeks to have the hearing held in a larger room. Respondent contends it is within its discretion to select the location of the hearing.

Before reaching the merits, I will address two procedural issues. Petitioner requests that a hearing involving disciplinary action against Dr. Falinski be moved to a new location. Since a decision on the merits would involve the rights of Dr. Falinski, 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, 33 id. 216). Because Dr. Falinski has not been joined as a party in this appeal, it must be dismissed.

Petitioner has also failed to state a claim upon which relief may be granted pursuant to 8 NYCRR 275.10. Education Law '3020-a vests in the employee, who is the subject of the proceeding, the right to demand a public hearing. Since petitioner is not the employee charged pursuant to this section of law, she has no right to control the nature of the hearing held. Accordingly, she fails to state a claim upon which relief can be granted by challenging the circumstances of the hearing.

The appeal must also be dismissed on the merits. In an appeal before the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Lemley, 33 Ed Dept Rep 706; Appeal of Cauley, 33 id. 359; Appeal of Singh, 30 id. 284). There is nothing in the record to support petitioner's assertion that respondent must hold the hearing in a room large enough to accommodate everyone who may wish to attend. The Regulations of the Commissioner require the board to notify the Commissioner of the location selected (8 NYCRR '82.3(a)(3)). The actual location of the hearing site within the district or county is left to the discretion of the board of education. Respondent notes that the central office board room is the largest district facility that is consistently available, without cost to the district and not located in a building with classrooms. Respondent maintains that to hold the hearing in a school building would be disruptive to classes. Respondent also notes that the difficulty of scheduling hearing dates would be unnecessarily compounded if it must coordinate the availability of the three panel members and the attorneys for the parties, as well as the availability of some other facility, to schedule a single hearing date. Based on the foregoing, I cannot conclude that respondent has abused its discretion in the selection of a site for the hearing.

While petitioner maintains that respondent has selected the central office board room as the hearing site to improperly prevent members of the public from attending, she presents no evidence other than those assertions to prove that contention. Indeed, the record reflects that the lottery system does allow a number of members of the public, as well as the press, to attend. Because the public and the press will be present, the hearing is considered to be open. Under these facts, I find no basis to require respondent to change the location of the hearing. I will remind the district, however, that it should be diligent about locating facilities that will allow the opportunity for as many people who wish to attend such public sessions to do so.