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Decision No. 14,549

Appeal of NANCY HOLLIDAY from action of the Board of Education of the Wyandanch Union Free School District regarding the provision of Title I services.

Decision No. 14,549

(March 23, 2001)

Van Nostrand & Martin, attorneys for respondent, David S. Desmond, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Dr. Milagros Rios, the coordinator for Title I services in the Wyandanch Union Free School District, and a review of Title I budget expenditures. The appeal must be dismissed.

Title I is part of the federal Improving America's Schools Act ("IASA") of 1994 (20 U.S.C. ""6301-6514). Title I programs serve educationally disadvantaged children in school attendance areas having a high concentration of children from low-income families.

Petitioner alleges that Dr. Rios, as the district's Title I coordinator, failed to adequately involve an elected parental advisory board. The Board of Education of the Wyandanch Union Free School District ("respondent") denies petitioner's allegations. Respondent also asserts that the appeal must be dismissed for failure to join a necessary party, lack of jurisdiction, and failure to state a claim.

The appeal must 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 as such (Appeal of Majka, 40 Ed Dept Rep ___, Decision No. 14,497; Appeal of Heller, 38 id. 335, Decision No. 14,048). Such 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). Since a decision in favor of petitioner would clearly affect Dr. Rios's employment, Dr. Rios is a necessary party to this proceeding. As such, petitioner was required to name Dr. Rios as a respondent and personally serve her with a copy of the petition and notice of petition (8 NYCRR "275.8; Appeal of Heller, supra). Her failure to do so warrants dismissal of this appeal.

The appeal must be also be dismissed because the Commissioner is without authority to order the relief requested. Education Law "306 authorizes the Commissioner to remove certain school officers. For purposes of "306, "school officer" means a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools, or "other school officer." As petitioner acknowledges, Dr. Rios is a district employee, not an officer subject to removal under "306 (Appeal of Davis, 37 Ed Dept Rep 17, Decision No. 13,793; Appeal of Federico, 35 id. 269, Decision No. 13,538). Therefore, petitioner's requested relief is not within the Commissioner of Education's authority and the appeal must be dismissed for failure to state a claim upon which relief can be granted.