Judge and Duffy, attorneys for respondent, Monica A. Duffy,

of counsel

MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Hartford Central School District ("respondent") to take action against a principal based on their complaints. The appeal must be dismissed.

It appears, from the sparse allegations in the petition, that petitioner John W. Logan, Jr., had some sort of altercation with David St. Germain, the principal of his children’s school, in January 1998. Petitioners subsequently removed their children from respondent's schools on March 16, 1998 because they allege that Mr. St. Germain treated their children, Amanda and John, unfairly. Petitioners apparently asked respondent to take disciplinary action against Mr. St. Germain based on their complaints. In a letter dated March 19, 1998, respondent’s superintendent indicated that respondent did not intend to initiate any disciplinary action against Mr. St. Germain.

Petitioners commenced this appeal on August 14, 1998 and specifically request that Mr. St. Germain be dismissed from employment so that they may allow their children to return to respondent's schools. By letter dated September 3, 1998, I denied petitioners' request for interim relief pending a determination on the merits of this appeal.

Respondent denies petitioners' allegations and contends that petitioners have failed to set forth a clear and concise statement of their claim showing that they are entitled to relief, as required by section 275.10 of the Commissioner's regulations. Respondent also claims that the appeal is moot because petitioner's children are currently attending its schools.

Before addressing the merits, I will address several procedural issues. Respondent claims that this appeal is moot because on September 9, 1998, the first day of class of the 1998-99 school year, petitioners' children resumed attending its schools. Petitioners have not submitted a reply denying this fact. However, petitioners also contest respondent's refusal to take action against Mr. St. Germain and request his dismissal for treating their children unfairly. In view of these facts, I will not dismiss this appeal as moot.

Respondent also argues that the appeal must be dismissed because the petition fails to meet the requirements of section 275.10 of Commissioner's regulations. That section requires, in pertinent part, that a petition "contain a clear and concise statement of petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which petitioner deems himself entitled." The petition in this matter largely consists of a letter addressed "To whom it may concern," which describes a confrontation between petitioner, John W. Logan, Jr., and Mr. St. Germain, several incidents in which petitioners allege that Amanda and John were treated unfairly by Mr. St. Germain, and petitioners' ongoing efforts with school officials to have their complaints resolved to their satisfaction. The petition does not contain a clear and concise statement of petitioners' claims showing that they are entitled to relief. From this petition, I am unable to determine with specificity the basis for petitioners' claim that they are entitled to relief (Appeal of Screen, 36 Ed Dept Rep 302; Appeal of Jenkins, 36 id. 497). Accordingly, the petition must be dismissed for failure to comply with 8 NYCRR "275.10.

The appeal must also be dismissed for failure to join a necessary party. 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). Petitioners have not joined Mr. St. Germain as a party. Petitioners are requesting his termination from employment with the district. Clearly, his rights would be affected by the outcome of this proceeding, and he is a necessary party.

The appeal must additionally be dismissed as untimely. All of the incidents identified in the petition occurred between January and March 1998. By letter dated March 19, 1998, respondent's superintendent of schools advised petitioners that respondent would take no action in reference to an incident between petitioner, John W. Logan, Jr., and Mr. St. Germain. The record does not reveal any later actions by respondent or its officials in reference to petitioners' complaints. An appeal to the Commissioner of Education pursuant to Education Law "310 must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioners commenced this appeal on August 14, 1998, nearly five months after respondent's refusal to take action against Mr. St. Germain. Petitioners provide no excuse for the delay in commencing the appeal. Therefore, the appeal must be dismissed as untimely.

Even if I were not to dismiss this appeal on procedural grounds, I would dismiss it on the merits. Petitioners have failed to establish in the record before me that Mr. St. Germain treated their children unfairly or engaged in any wrongdoing and have not shown that respondent acted improperly in refusing to take action against Mr. St. Germain. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Catherine B., 37 Ed Dept Rep 34; Appeals of Lindauer and McKee, 34 id. 596). Petitioners have not met this burden.

I have examined petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE