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Decision No. 14,606

Appeal of LAURIE A. BRANCH, EARL McELFRESH and THOMAS E. BRANCH from action of the Board of Education of the City School District of the City of Olean, and Ralph P. Kerr, Superintendent, regarding a principal position.

Decision No. 14,606

(July 20, 2001)

Wagner & Hart, attorneys for petitioners, John M. Hart, Jr., Esq., of counsel

Hogan & Sarzynski, LLP, attorneys for respondents, John P. Lynch, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the resolution of the Board of Education of the City School District of the City of Olean ("respondent board") to appoint one principal for two separate elementary schools. The appeal must be dismissed.

As of September 2000, the district's Boardmanville Elementary School ("Boardmanville") had an enrollment of 224 students. The district's North Hill Elementary School ("North Hill"), located 8/10 of a mile away from Boardmanville, had an enrollment of 136. On November 21, 2000, respondent board passed a resolution "that an alternative mode of building administration be employed effective July 1, 2001, that would combine the principalship responsibilities of the North Hill and Boardmanville Elementary Schools." This appeal ensued.

Petitioners assert that respondent board's plan to assign one principal to two elementary schools violates "100.2(a) of the Commissioner's regulations, which requires a board of education to "employ and assign to each school under its supervision a full-time principal holding the appropriate certification...." The regulation permits the Commissioner to approve another mode of building administration "upon the 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." However, petitioners assert that respondents have not requested a variance from the State Education Department ("SED"). Petitioners seek an order requiring respondents to comply with the Commissioner's regulations and retain a full-time principal for each school. Although petitioners initially named the district superintendent as a party, they subsequently withdrew any claims against him or his successor.

Respondents maintain that their plan to employ one principal for the two schools is allowable and state that the district's counsel and the district superintendent advised them that no variance was required. Respondents further assert that the appeal is untimely and premature, and petitioners lack standing.

As a threshold matter, I find that petitioners have standing to bring this appeal as the parents of Boardmanville students. Respondents also assert that the appeal is premature because both Boardmanville and North Hill currently have a principal assigned to them. However, to the extent that petitioners challenge respondent board's adoption of the resolution on November 21, 2000 and its determination that a waiver from SED is unnecessary, I find the appeal is not premature.

However, the appeal must be dismissed as untimely. An appeal to the Commissioner pursuant to Education Law "310 must be commenced 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). Respondent board passed the resolution on November 21, 2000, yet petitioners did not commence this appeal until April 5, 2001, more than four and one-half months later. Petitioners argue that respondent's final determination not to seek a variance from SED was not made until March 23, 2001, as evidenced by an e-mail from Dr. Kerr to petitioner Laurie Branch, and that the petition was filed within thirty days of that notification. However, Ms. Branch's communications with Dr. Kerr are essentially requests for reconsideration, which do not extend the time in which to commence an appeal (Appeal of Shabot, 39 Ed Dept Rep 490, Decision No. 14,289).

Although I am constrained to dismiss this appeal as untimely, it appears from the record that a variance request is required to effectuate respondent board"s resolution. While there is no direct evidence in the record that respondents have actually appointed one principal for the two schools, the board's resolution has a July 1, 2001, effective date. Furthermore, respondents imply in their answer that the fact that the two schools are located 8/10 of a mile apart justifies the appointment of one principal for the two schools. I note that there are no distance prerequisites in the regulation that would obviate the need for the district to apply for a variance. Furthermore, respondents' reliance on Appeal of Middle Island Principals' Association, et al. (19 Ed Dept Rep 507, Decision No. 10,229) for such a proposition is misplaced. That decision held that the regulation "is meant to apply to a situation where a district fails to assign a principal to each of its separate schools and not to a situation where a district has assigned a principal to a school composed of more than one building in close proximity." The instant appeal clearly concerns two separate schools. Respondent is advised to carefully consider any principal appointments to assure compliance with all applicable regulations. In addition, I am directing SED's variance office to contact the district concerning the status of its principal appointments and the submission of a variance request in the event "an alternative mode of building administration" is still desired.