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Decision No. 14,155

Appeal of ALICE J. SADUE-SOKOLOW from action of the Board of Education of the Penfield Central School District regarding shared decisionmaking.

Decision No. 14,155

(July 15, 1999)

Harris, Beach & Wilcox, LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the parent member appointments made by the Board of Education for the Penfield Central School District ("respondent") to its district-level shared decisionmaking team. The appeal must be dismissed.

On July 7, 1998, respondent appointed two individuals to serve as parent representatives on its district-level team in accordance with its shared decisionmaking plan ("plan"). One of the appointed parent representatives, Leslee Mabee, is also an employee of the district.

Respondent’s plan provides for a district-level team in addition to building-based teams. The role of the district-level team according to the plan is to prepare guidelines for the operation of the building-based teams; coordinate training for team members; establish communication strategies between and among teams; provide intervention for school-based teams when necessary and make decisions regarding issues that require a districtwide focus.

Respondent’s plan specifies that the district-level team shall consist of four teachers appointed by the teacher’s bargaining organization, two parents of students attending public schools within the district appointed by respondent, three building administrators appointed by the administrative bargaining organization and one district administrator appointed by the superintendent.

Petitioner claims that respondent, in selecting parent members for its district-level team, is subject to the parent member selection process contained in "100.11(b) of the Commissioner's Regulations. Petitioner further maintains that respondent violated the regulation by appointing parent representatives to the district-level team and seeks the removal of Leslee Mabee, the parent representative who is employed by the district.

Respondent contends that "100.11 does not govern the selection of parent members to the district-level team established pursuant to its shared decisionmaking plan. Respondent further states that the district-level team is a separate and distinct group from the committee involved in the creation of the district’s shared decisionmaking plan. Respondent also maintains that the appeal should be dismissed as untimely and because petitioner failed to allege that she is a district resident. In addition, respondent argues that the appeal must be dismissed for failure to join Leslee Mabee as a named party in this appeal.

As a preliminary matter, petitioner offers new allegations and exhibits in her reply. In addition, she submits an additional affidavit with exhibits and asks that I accept them under 8 NYCRR "276.5. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress allegations in the petition or add assertions or exhibits that should have been in the petition (Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077; Appeal of Thompson, 34 id. 134, Decision No. 13,259). Therefore, while I have reviewed petitioner’s submissions, I have not considered those portions containing new allegations and exhibits, which are not responsive to new material or affirmative defenses in the answer.

Initially, I will address respondent's procedural defenses. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Although petitioner did not commence the appeal within this 30-day period, respondent’s appointment of parent representatives to its district-level team in accordance with its shared decisionmaking plan, if unlawful, is a continuing wrong (Appeal of Fitch, 34 Ed Dept Rep 486, Decision No. 13,391; Appeal of Tropia, 32 id. 606, Decision No. 12,929; Appeal of Nettles, 31 id. 437, Decision No. 12,691). Therefore, I decline to dismiss the appeal as untimely.

However, the appeal must be dismissed for failure to join Leslee Mabee as a respondent. An individual whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Morris, 38 Ed Dept Rep 427, Decision No. 14,066; Appeal of Heller, 38 id. 335, Decision No. 14,048). Since petitioner seeks to remove Ms. Mabee from the respondent’s district-level team, her rights would be clearly affected if the petition were granted. In the instant appeal, Ms. Mabee was not named as a respondent in the notice of petition and petition and was not served with these pleadings. The appeal must, therefore, be dismissed for failure to join a necessary party (Appeal of Heller, supra).

Although I am constrained to dismiss this appeal on procedural grounds, I must comment on respondent’s handling of shared decisionmaking. There is evidence in the record to suggest that respondent's district-level team played some role in the biennial review of the district’s shared decisionmaking plan. It is unclear whether respondent also created a district-wide committee whose membership satisfies the regulation for purposes of conducting the biennial review. I caution respondent that its district-level team as currently configured may not serve as the district-wide committee for purposes of conducting the biennial review of the district’s shared decisionmaking plan required under "100.11(f) of the regulations. Respondent must also ensure that the district-level team does not usurp the responsibilities of the district-wide committee by issuing guidelines and/or decisions that amend the district shared decisionmaking plan. Only a committee comprised of individuals selected in accordance with "100.11(b) may perform these responsibilities (8 NYCRR "100.11[f]; Appeal of the Port Jefferson Station Teachers Association, et al., 34 Ed Dept Rep 656, Decision No. 13,443; Appeal of Roby, 34 id. 654, Decision No. 13,442). These regulatory responsibilities may not be delegated to another entity with other membership criteria (Appeal of Fitch, supra).