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Decision No. 14,501

Appeal of PATRICIA ALLEN and GARY WONG from action of the Board of Education of the Hoosick Falls Central School District regarding the grant of tenure.

Decision No. 14,501

(November 30, 2000)

John V. Imhof, Esq., attorney for petitioners

Gunter Dully, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the Hoosick Falls Central School District ("respondent") to grant tenure to high school principal Robert Johnson. The appeal must be dismissed.

Petitioner Allen is a resident of respondent’s district and a former employee. Petitioner Wong is a member of respondent board who took office after the determination was made to grant Mr. Johnson tenure. On July 3, 1998, respondent granted Mr. Johnson a probationary appointment as high school principal effective July 20, 1998. Mr. Johnson served two years of his three-year probationary term. At a special meeting on June 29, 2000, respondent granted Mr. Johnson tenure effective July 1, 2000.

Petitioners allege that the grant of tenure was improper for several reasons. They contend that when Mr. Johnson was hired, the district’s Superintendent of Schools, Nancy Chase, failed to inform respondent that he had been convicted of embezzling funds from a school where he previously worked. They also assert that various parties raised allegations that Mr. Johnson engaged in improper conduct at Hoosick Falls High School during his probationary period. Petitioner Wong asserts that he was elected to respondent board because he promised to investigate the allegations and terminate Mr. Johnson’s services if they proved true.

Petitioners note that the tenure determination was made after two new board members had been chosen but before they took office. They further assert that Ms. Chase’s agreement to accept early retirement was linked to respondent’s decision to grant Mr. Johnson tenure a year early. They contend that both actions took place at the same special meeting and that the meeting agenda did not refer to the tenure decision. Petitioners argue that it was improper for respondent to grant tenure before Mr. Johnson had completed his three-year probationary term and ask me to set the determination aside and direct respondent to review Mr. Johnson’s performance at the end of the three-year period.

Respondent argues that petitioners lack standing, may not bring this appeal on behalf of a class and have failed to join a necessary party. Respondent also asserts that there is no requirement that it give notice of all matters to be discussed at a special meeting. Finally, respondent argues that it has the authority to grant tenure to an individual before the expiration of his or her probationary period and that it granted Mr. Johnson tenure based on his job performance.

The appeal must be dismissed on procedural grounds. First, petitioners lack standing. 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 562, Decision No. 14,311; Appeal of Lucente, 39 id. 244, Decision No. 14,227). Status as a resident of a school district 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 id. 563, Decision No. 13,151). Petitioner Wong’s status as a member of the current board of education does not endow him with any greater interest (Appeal of Sullivan, 33 Ed Dept Rep 566, Decision No. 13,152).

The appeal also must be dismissed for failure to join Mr. Johnson as a party. Petitioners ask me to set aside respondent’s grant of tenure to Mr. Johnson and to direct them to reconsider whether to grant tenure when he completes three years of service. Mr. Johnson’s interests would be adversely affected if I were to decide in petitioners’ favor. Accordingly, he is a necessary party (Appeal of Looman, 39 Ed Dept Rep 370, Decision No. 14,262; Appeal of Rider, 39 id. 282, Decision No. 14,238; Appeal of Andela, 38 id. 249, Decision No. 14,026). Petitioners did not name Mr. Johnson as a respondent in either the petition or the notice of petition and have not personally served him. The appeal must, therefore, be dismissed for failure to join a necessary party (Appeal of Long, 39 Ed Dept Rep 463, Decision No. 14,284).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The Commissioner and the New York State Court of Appeals have held that a board may grant tenure prior to the expiration of an employee’s probationary period (Appeal of Sullivan, supra, citing Matter of Weinbrown v Board of Education, 28 NY2d 474 [1971]). Moreover, there is no requirement that the notice of a special board meeting contain any notice of a proposed agenda (Appeal of Central School District No 1, 10 Ed Dept Rep 203, Decision No. 8274).

In light of this disposition, I need not address the parties’ remaining contentions.