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Decision No. 14,391

Appeal of RICHARD MACKAY from action of the Board of Education of the Gilbertsville-Mount Upton Central School District regarding the salary of the Superintendent of Schools.

Decision No. 14,391

(June 16, 2000)

Hogan & Sarzynski, LLP, attorneys for respondent, John B. Hogan, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the action of the Board of Education of the Gilbertsville-Mount Upton Central School District ("respondent") granting a salary increase to Douglas Exley, the district’s superintendent of schools. The appeal must be dismissed.

At a May 19, 1999 school board meeting, respondent presented its estimated expenses for the following school year. In accordance with Education Law "1716(5), respondent appended to its statement of estimated expenditures for the 1999-2000 school year a "Superintendent Salary Disclosure Statement," which "projected" that Superintendent Exley’s 1999-2000 salary would be $81,097. Exley’s then current salary was reported as $78,355. The disclosure statement therefore projected an increase in Exley’s salary of $2,742.

Concerned that Exley was receiving a salary lower than other area superintendents, respondent voted on September 21, 1999 to increase his compensation by an additional $11,903, for a total salary of $93,000 for the 1999-2000 school year. On October 6, 1999 petitioner served a notice of petition and petition upon Ronnie Meers, Superintendent Exley’s secretary.

Petitioner claims that the district’s voters approved a salary increase of $2,742 for Superintendent Exley on May 19, 1999, and that that amount -– and no more -- should represent his raise for the 1999-2000 school year.

Respondent asserts that under Education Law "1711(3) superintendents’ salaries are set by boards of education, and not by district voters; that Superintendent Exley was not joined as a party; and that service of process commencing this appeal was defective.

Initially, I note that petitioner requests that I accept a new exhibit, submitted subsequent to the filing of the appeal, pursuant to 8 NYCRR "276.5. By letter dated November 12, 1999, petitioner asks that I consider portions of an employment contract entered into by Superintendent Exley and respondent. However, there is no indication that this exhibit was unavailable at the time the petition was served, as the contract petitioner seeks to submit was signed on March 2, 1999. Further, petitioner does not claim that he was precluded from obtaining the contract in time to include it in the petition. Therefore, while I have reviewed petitioner’s letter and exhibit, I decline to consider them in rendering a decision in this appeal (Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077).

The appeal must be dismissed because of petitioner’s 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 as such (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Heller, 38 id. 335, Decision No. 14,048). An individual must 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, 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 to answer the allegations contained in the petition (8 NYCRR "275.11, 275.13; Application of the Board of Education of the Ardsley Union Free School District, 38 Ed Dept Rep 221, Decision No. 14,019). Petitioner challenges respondent’s decision to increase Superintendent Exley’s salary, and seeks to have the superintendent’s originally agreed upon raise reinstated. Because a decision in favor of petitioner would clearly affect Exley’s property rights (i.e., his salary), he is a necessary party to this proceeding. Petitioner’s failure to join Exley therefore warrants dismissal of this appeal.

Respondent also contends that the petition should be dismissed because it was not served in accordance with the requirements of "275.8 of the Commissioner’s Regulations. To commence an appeal against a board of education, a copy of the petition must be personally delivered to the district clerk, to any trustee, to any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR "275.8[a]). Petitioner served the papers in this appeal on Ronnie Meers, Superintendent Exley’s secretary. Ms. Meers is not a proper person to accept service according to the Commissioner's regulations, nor has she been designated to accept service for the district. When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper (Appeal of Bowers, 34 Ed Dept Rep 603, Decision No. 13,424; Appeal of Cauley, 33 id. 359, Decision No. 13,077). Accordingly, since I find service of the notice of petition and petition to be improper, I must dismiss the appeal.

In light of the foregoing procedural disposition, I will not address the parties’ remaining contentions.