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Decision No. 14,581

Appeal of RICHARD WHEELER, individually and as President of the Adirondack Central School Administrators' Association, from action of the Board of Education of the Adirondack Central School District regarding a principal position.

Decision No. 14,581

(June 4, 2001)

Douglas E. Gerhardt, Esq., attorney for petitioner

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Henry F. Sobota, Esq., of counsel

MILLS, Commissioner.--Petitioner, individually and as president of the Adirondack Central School Administrators' Association ("Association"), appeals the decision of the Board of Education of the Adirondack Central School District ("respondent") to appoint a principal with part-time teaching responsibilities, rather than a full-time principal, at Forestport Elementary School ("Forestport"). The appeal must be dismissed.

Forestport is a small school with 108 students and 8 teachers. On or about August 4, 2000, the principal of another district elementary school, Boonville Elementary ("Boonville"), notified Superintendent Marjorie Kelly that she intended to retire. Superintendent Kelly transferred Lisa Lemieux, then principal of Forestport, to fill the Boonville vacancy, and appointed Ann Bush as principal of Forestport. Respondent approved Ms. Bush's appointment on September 12, 2000. Previously, Ms. Bush served as a speech teacher at Forestport. In addition to her duties as principal, Ms. Bush continues to serve as a part-time speech teacher.

Petitioner contends that respondent created a new position of "Teaching Principal" at Forestport when it appointed Ms. Bush, and by doing so, respondent violated "100.2(a) of the Commissioner's regulations. That section requires a board of education to employ and assign a full-time principal to each school under its supervision. The regulation also permits the Commissioner to approve an alternative mode of building administration upon submission of evidence that there are circumstances which do not justify the assignment of a principal to a particular school, or that another mode of building administration would be more effective. Here, petitioner contends that respondent failed to apply for or receive a variance from the full-time requirement. Petitioner also asserts that respondent failed to post the Forestport position and failed to create a new job description for the new position of teaching principal. Petitioner seeks an order compelling respondent to comply with 8 NYCRR "100.2(a) and annulling respondent's creation of the teaching principal position at Forestport.

Respondent asserts that since it opened in 1969, Forestport has always employed a principal who shared administrative and other duties. It asserts that previous principals also performed teaching duties and that the most recent principal also served as the district-wide curriculum coordinator. It also contends the appeal must be dismissed for failure to state a claim upon which relief may be granted, failure to join a necessary party, and petitioner's lack of standing. Respondent asserts further that the Commissioner lacks jurisdiction to reconsider those issues that the Association previously grieved under its collective bargaining agreement.

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 Ms. Bush's employment as principal at Forestport, Ms. Bush is a necessary party to this proceeding. As such, petitioner was required to name Ms. Bush 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). His failure to do so warrants dismissal of this appeal. In so holding, I reject petitioner's contention that Ms. Bush is a party to the appeal as a member of the Association.

In light of this disposition, I need not address the parties' other contentions.