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Decision No. 14,051

Appeal of ALVINA FOSHEE, from action of the Board of Education of the Wyandanch Union Free School District regarding the appointment of a school district clerk.

Decision No. 14,051

(December 21, 1998)

Kevin A. Seaman, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the appointment by the Board of Education of the Wyandanch Union Free School District ("respondent") of her successor as district clerk. The appeal must be dismissed.

Petitioner served as the district clerk of the Wyandanch Union Free School District from July 10, 1996 until July 9, 1997, pursuant to a one-year appointment by respondent. On July 9, 1997, respondent appointed petitioner temporarily as district clerk until it could make a permanent appointment for the 1997-98 school year. On August 13, 1997, respondent appointed Wanda R. Sykes, as the new district clerk for the 1997-98 school year. Ms. Sykes was sworn in on the following day, August 14, 1997.

By this appeal petitioner apparently seeks to challenge respondent's appointment of Ms. Sykes as district clerk for the 1997-98 school year. Petitioner seeks oral argument before me and such relief as I deem just and proper. On December 10, 1998 I denied oral argument.

Respondent contends that it did not violate Education Law "306 or any other provision of the Education Law when it appointed petitioner temporarily to the district clerk position on July 9, 1997 and subsequently appointed Ms. Sykes to the permanent position for the 1997-98 school year. Respondent also contends that this appeal should be dismissed for failure to name Wanda R. Sykes as a necessary party to this proceeding.

Initially, I must address several procedural issues. The petition in this proceeding is quite sparse. Petitioner claims that respondent has violated Education Law "306, without further explanation, except to state that respondent's legal counsel indicated that the district could not have two district clerks and that petitioner was the district clerk until the next reorganizational meeting. In addition, petitioner does not state the relief to which she believes she is entitled, except to request oral argument before me and "[s]uch other relief as the Commissioner deems just and proper."

Section 275.10 of the Commissioner's regulations requires in pertinent part that a petition ". . . contain a clear and concise statement of petitioner's claim showing that the petition is entitled to relief and shall further contain a demand for the relief to which petitioner deems himself entitled." The petition does not state a cognizable claim or a demand for any specific relief, other than to request oral argument before me. I am unable to determine with specificity the nature of the relief sought or the basis for petitioner's claim that she is entitled to any relief (Appeal of Timothy R. and Janice Blake, 37 Ed Dept Rep 250; Appeal of George, 33 id. 495). Accordingly, the petition must be dismissed for failure to comply with 8 NYCRR "275.10.

Petitioner attempts to buttress her claim with facts, exhibits and additional claims which are not contained in the petition. Pursuant to 8 NYCRR ""275.3 and 275.14, the purpose of a reply is to respond to procedural defenses or new material contained in an answer (Appeal of John W. and Lorraine W., 37 Ed Dept Rep 713; Appeal of Corbett, 34 id. 138; Appeal of Post, 33 id. 151). A reply is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been part of the petition (Appeal of John W. and Lorraine W., supra; Appeal of Corbett, supra; Appeal of Post,supra). The exhibits attached to the reply could have been submitted when the petition was served. Accordingly, while I have examined petitioner's submissions, I have not considered those portions of the reply that constitute new allegations or evidence which are not responsive to new material or affirmative defenses set forth in the answer.

The board of education of a union free school district is authorized to appoint a district clerk for a one-year term of office. (See, Education Law ""2130[1], 2105[6]). Petitioner's complaint concerns her temporary appointment in July 1997 and the subsequent permanent appointment of Ms. Sykes in August 1997, for the 1997-98 school year. Because district clerks are appointed to one-year terms, the term of office for the district clerk appointed by respondent for the 1997-98 school year has already concluded. Likewise, even if respondent's appointments in July and August of 1997 were defective, it would not affect the legality of respondents' current appointment of a district clerk for the 1998-99 school year. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists, or which subsequent events have laid to rest (Appeal of Lewis, 33 Ed Dept Rep 520, Appeal of Pierrot, 33 id. 67). Therefore, since the 1997-98 school year is over, the remedy of appointment to the district clerk position is no longer available, and the appeal must be dismissed as moot. To the extent petitioner may be seeking back pay in connection with respondent's appointment of the district clerk for the 1997-98 school year, I have no authority to award monetary damages in an appeal brought before me pursuant to Education Law "310 (Appeal of a Student with a Disability, 33 Ed Dept Rep 1).

Respondent claims that the appeal must be dismissed for failure to join the new district clerk, Wanda R. Sykes. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined (Appeal of Basil, 37 Ed Dept Rep 568; Appeal of a Student Suspected of Having a Disability, 37 Id. 303). Joinder requires that the necessary party be named as a respondent, served with the petition and afforded a genuine opportunity to respond to the allegations (Appeal of Sharp, 35 Ed Dept Rep 471; Appeal of Osterman, 30 id. 290). Mere service of the petition does not accomplish joinder of the respondent. The individual must also be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Heller, 38 Ed Dept Rep ___ [Decision No. 14048 12/15/98]; Appeal of Chechek, 37 Ed Dept Rep 624; Appeal of Hochhouser, 34 id. 580, citing City of Mount Vernon v. Best Development Co., 268 NY 327; Appeal of Osterman, supra). It is the notice of petition which alerts a party to the fact that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR "275.11; Appeal of Heller, supra; Appeal of Chechek, supra; Appeal of Osterman, supra).

In this case, Ms. Sykes is a necessary party to this proceeding because the appeal involves her rights to the district clerk position. Although Ms. Sykes was served with the petition in her capacity as respondent's district clerk, she was not named as respondent in either the notice of petition or the petition itself. Therefore, in so far as the petition seeks to affect Ms. Sykes rights to the district clerk's position, it is dismissed for failure to join her as a necessary party.

Even if I were not to dismiss this appeal on procedural grounds, I would dismiss it on the merits. Respondent states that it did not initially appoint a district clerk for the entire 1997-98 school year because it had not finished reviewing candidates' resumes. Respondent further states that petitioner knew that she was receiving a holdover temporary appointment in July 1997, until respondent could appoint a district clerk for the 1997-98 school year. There is no dispute that in July 1997, petitioner received only a temporary appointment to the position of district clerk, pending a decision on the permanent appointment for the 1997-98 school year; and that in August of 1997, respondent appointed another person, Wanda R. Sykes, to the district clerk position for the 1997-98 school year. Respondent states that there were never two district clerks employed at the same time in 1997-98. Petitioner held the position temporarily until Ms. Sykes was appointed in August of 1997.

Section 2(13) of the Education Law defines the term "school officer" to include the office of district clerk. The holdover provisions of Public Officers Law (Public Officers Law "5) are applicable to school officers, including district clerks (3 Op St Compt 368 [1947]; 1908 Atty Gen 133). Public Officers Law "5 provides, in pertinent part:

Every officer except a judicial officer, a notary public, a commissioner of deeds and officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing a successor. . . .

In addition, Education Law "2114 provides that a vacancy in the office of the district clerk ". . . may be filled by appointment by the trustees of the district, and the appointees shall hold their respective offices until the next annual meeting of the district, and until their successors are elected and have qualified."

In this case, petitioner completed her one-year appointment on or about July 9, 1997. After that date, the district clerk's position was vacant, pursuant to Public Officers Law "5. On these facts, I find petitioner's temporary appointment to be a holdover appointment, which she held until respondent appointed her successor, in

accordance with the requirements of Public Officers Law "5 and Education Law "2114.