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Decision No. 13,547

Appeal of SHEILA GARWOOD from action of the Board of Education of the East Rochester Union Free School District, regarding the appointment of personnel.

Decision No. 13,547

(February 5, 1996)

Harris, Beach and Wilcox, Esqs., attorneys for respondent, Alfred L. Streppa, Esq., of Counsel

MILLS, Commissioner.--Petitioner challenges the creation by the Board of Education of the East Rochester Union Free School District ("respondent") of a position within the district. The appeal must be dismissed.

On May 16, 1995 respondent eliminated the discipline and attendance functions of the assistant principal's job and created an eleven-month position of discipline/attendance officer, effective July 1, 1995. Respondent subsequently made the position a twelve-month job and appointed Samuel Morabito to it on July 11, 1995. Mr. Morabito is a certified teacher who the district had employed prior to August 1, 1975, in the broad tenure area of "secondary education." On August 15, 1995, respondent appointed him to a non-tenure bearing "special assignment" as the district's discipline/attendance officer and granted him a leave of absence from his physical education position, to enable him to accept the special assignment. Respondent placed the newly created position in the administrators' bargaining unit.

Petitioner seeks the removal of Mr. Morabito, claiming that his appointment was improper. Respondent contends the appeal is untimely and fails to name a necessary party. Respondent further contends that petitioner lacks standing and seeks a declaratory ruling. Respondent asserts that it has discretion to reorganize positions and job functions.

Petitioner has no standing to bring this appeal because she is not an "aggrieved party" as contemplated under Education Law '310. An "aggrieved party" is defined as one who demonstrates a personal injury to his or her civil, personal or property rights resulting from the action complained of (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 53; Appeal of Town of Smithtown, 28 id. 337). In this appeal, petitioner has failed to demonstrate any present injury or violation of her rights. She does not assert how the change in job functions and hiring of Mr.

Morabito affects her in any way. In fact, the record does not reflect whether she is an employee or even a resident of respondent district. Therefore, the petition must be dismissed.

The petition must also be dismissed for failure to join a necessary party. When an individual's rights may be affected by a determination in an appeal brought pursuant to Education Law '310, that individual must be joined as a party (Appeal of Haff, 35 Ed Dept Rep 130; Appeal of Smith, 34 id. 346; Appeal of Cardinal, 34 id. 76; Appeal of Sanfilippo, 33 id. 500). The party must be named as a respondent and served with a copy of the notice of petition and petition to allow the named party to defend his or her position (Application to Reopen Appeal of Reese, et al., 34 Ed Dept Rep 447). Petitioner failed to join Mr. Morabito, the individual appointed to the discipline/attendance position. A decision on the merits in this matter would necessarily involve the rights of Mr. Morabito. Accordingly, the appeal must be dismissed for failure to join a necessary party (Appeal of Haff, supra; Appeal of Damilatis, 33 Ed Dept Rep 465; Appeal of Williams, 33 id. 318; Appeal of Uciechowski, 32 id. 511).

The appeal must also be dismissed on the merits. A board of education has broad discretion, acting in good faith, to abolish positions and consolidate duties of former positions among existing positions (Education Law '1709; Young v. Board of Education Central School District No. 6, 41 AD2d 966, aff'd 35 NY2d 31; Lezette v. Board of Education, Hudson City School District, 35 NY2d 272; Appeal of Chaney, 33 id. 12). School districts have a right to consolidate and abolish positions for economic reasons (Currier v. Tompkins-Seneca-Tioga BOCES, 80 AD2d 979). The record in this case reflects that no position was abolished, but that respondent created an additional position. They removed functions from the assistant principal's position and created a separate position. This is similar to the distribution of job functions that is consistent with the legal principle of fractionalization (Appeal of Chaney, supra; Young v. Board of Education, supra). Accordingly, I find nothing improper in respondent's creation of a new position.

Based upon the foregoing, I will not address petitioner's remaining claims.