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Decision No. 14,382

Appeal of THOMAS L. SHERWOOD from action of the Board of Education of the Caledonia-Mumford Central School District regarding the resignation of a school superintendent, the selection of an architect and the appointment of a teacher.

Decision No. 14,382

(June 12, 2000)

Harris Beach & Wilcox, LLP, attorneys for respondent, James A. Spitz, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner challenges actions of the Board of Education of the Caledonia-Mumford Central School District ("respondent") relating to the resignation of the superintendent, Dr. Patricia Archambault, the selection of an architect for a district building project, and the appointment of a teacher. The appeal must be dismissed.

Respondent entered into an employment agreement with Dr. Archambault on May 14, 1996, which provided that she would serve as superintendent from July 1, 1996 until June 30, 1999. The agreement stated that respondent would annually review the superintendent’s performance and that the parties could mutually agree to terminate their contract. On August 21, 1998, Dr. Archambault signed respondent’s evaluation of her performance covering the preceding year. Respondent rated her on twenty performance measures and assigned her an average score of 5.48 out of 10 points.

Dr. Archambault subsequently tendered her resignation. At its October 13, 1998 meeting, respondent voted 4-3 to accept the resignation, which was effective November 2, 1998. At the October 13 meeting, Dr. Archambault also read a letter to the community setting forth the reasons for her resignation. Among other things, she stated that she resigned because four board members had reached an "informal decision" not to renew her contract.

Respondent held a special meeting on October 27, 1998. A number of students and community members raised concerns about the superintendent’s resignation and asked respondent board to reconsider its acceptance. One board member made a motion to offer Dr. Archambault an extended contract for three years. The motion was defeated 4-2. This appeal ensued.

Petitioner argues that respondent improperly forced the superintendent to resign. He alleges that respondent failed to comply with the terms of its agreement with Dr. Archambault governing evaluations and contract renewal. He also asserts that respondent acted improperly in appointing a teacher without the superintendent’s recommendation and in selecting the architect for a district building project. He contends that respondent erred in compelling the district to compete with surrounding districts who also are seeking new superintendents and that it failed to respond to students’ requests for information about Dr. Archambault’s resignation. He asks me to reinstate the superintendent, censure or remove four members of respondent board and investigate what he describes as respondent’s "direct disregard for policy and procedure, and the abuse of power."

Respondent argues that petitioner lacks standing to challenge the terms of the superintendent’s employment or resignation, that his claims are untimely and that he has failed to present facts that would justify censure or removal of any board members. Respondent also argues that its acceptance of Dr. Archambault’s voluntary resignation renders moot any claim regarding her employment, evaluation, resignation or reinstatement. Respondent further contends that its appointment of the architect and teacher were in all respects proper.

Preliminarily I note that although respondent alleges that the petition is unverified, the copy of the petition filed with my Office of Counsel is, in fact, verified. Although petitioner should have included a copy of the verification in the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and because the copy of the petition submitted to me is verified.

The appeal must be dismissed on a number of procedural grounds. First, it is untimely. An appeal to the Commissioner 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). Petitioner challenges respondent’s selection of an architect in July 1995, its appointment of a teacher on July 21, 1998, and its actions leading to its acceptance of the superintendent’s resignation on October 13, 1998. The petition was not served until November 20, 1998, more than 30 days after the latest of these events. As numerous Commissioner’s decisions have previously indicated, a request for reconsideration of a final determination, like the one made at respondent’s October 27, 1998 meeting, does not extend the time to bring an appeal (Appeal of Schmitt, 39 Ed Dept Rep __, Decision No. 14,329; Appeal of Decker, 39 id. 62, Decision No. 14,173; Appeal of Jane G., 38 id. 1, Decision No. 13,969). Therefore, the appeal must be dismissed as untimely.

Petitioner also lacks standing to appeal respondent’s actions surrounding the superintendent’s resignation. In challenging respondent’s alleged failure to comply with contract provisions regarding Dr. Archambault’s evaluations and contract renewal, petitioner is attempting to assert Dr. Archambault’s rights. A petitioner may appeal on his own behalf, but lacks standing to assert the rights of others (Appeal of Swanson, 39 Ed Dept Rep 312, Decision No. 14,247; Appeal of Cappa, 36 id. 278, Decision No. 13,724; Appeal of Ulcena, 33 id. 328, Decision No. 13,065).

Pursuant to Education Law "310, an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Only persons who are directly affected by the action being appealed have standing (Appeal of Murphy, 39 Ed Dept Rep , Decision No. 14,311; Appeal of Lucente, 39 id. 244, Decision No. 14,227). Petitioner has not shown that he suffered personal injury or damage to his own rights. Status as a resident of a school district or as the parent of a student does not, in and of itself, confer standing to challenge a board of education’s actions concerning its employees (Appeal of Craft and Dworkin, 36 Ed Dept Rep 314, Decision No. 13,734; Appeal of Siracusa and Montana, 33 Ed Dept Rep 563, Decision No. 13,151).

The appeal also must be dismissed to the extent that it seeks removal of individual board members. The individuals against whom petitioner seeks relief are clearly necessary parties, as their interests would be adversely affected if I were to decide in petitioner's favor (Appeal of Looman, 39 Ed Dept Rep ___, Decision No. 14,262; Appeal of Rider, 39 id. 282, Decision No. 14,238; Appeal of Andela, 38 id. 249, Decision No. 14,026). To join an individual as a party to an appeal, that person must be named as a respondent, served with the petition and notice of petition, and afforded an opportunity to defend his or her interests (Appeal of Board of Education of the Ardsley UFSD, 38 Ed Dept Rep 221, Decision No. 14,019). It is the notice of petition which alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (Appeal of Heller, 38 Ed Dept Rep 335, Decision No. 14,048; Appeal of Chechek, 37 id. 624, Decision No. 13,943). Petitioner has not named any individual board members as respondents in either the petition or the notice of petition and has not personally served any of the board members. Moreover, the notice of petition does not state that the removal of any person is sought, as required by 8 NYCRR 277.1. Thus, to the extent petitioner seeks removal of individual board members, the appeal must be dismissed for failure to join necessary parties. Furthermore, it is well established that I do not have the authority to censure or reprimand a board member as petitioner requests (Appeal of Kozak, 39 Ed Dept Rep 278, Decision No. 14,237; Appeal of Kane, 34 id. 116, Decision No. 13,251; Appeal of Silano, 33 id. 20, Decision No. 12,961).

Petitioner also asks for an investigation of respondent’s alleged misconduct. The requested relief is beyond the scope of this proceeding. An appeal to the Commissioner under Education Law "310 is appellate in nature and does not provide for investigations (Appeal of Schonfeld, 38 Ed Dept Rep 306, Decision No. 14,040; Appeal of Distefano, 36 id. 217, Decision No. 13,705).

Even if the appeal were not barred on various procedural grounds, I would dismiss it on the merits. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of James L., 39 Ed Dept Rep __, Decision No. 14,288; Appeal of Logan, 38 id. 694, Decision No. 14,120). Petitioner has failed to submit evidence sufficient to demonstrate that respondent acted improperly with respect to any of his allegations. Petitioner’s failure to meet his burden requires dismissal.

In view of the foregoing disposition, I will not address petitioner’s remaining contentions.