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Decision No. 14,656

Appeal of LOUISA CHAN and MARY CROWLEY GROGAN from action of the Board of Education of the City School District of the City of New York regarding the appointment of an acting superintendent.

Decision No. 14,656

(November 29, 2001)

Michael D. Hess, Corporation Counsel, attorney for respondent, Michelle M. Buescher, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the dismissal by the Board of Education of the City School District of the City of New York ("respondent") of their appeal challenging the assignment of Joseph Quinn as acting superintendent of Community School District 24 ("District 24"). The appeal must be dismissed.

Petitioners are members of the Board of Education of Community School District 24 ("board"). On September 23, 1999, the board voted not to renew the contract of its superintendent, Joseph Quinn, which was due to expire on June 30, 2000. By letter dated September 30, 1999, Chad A. Vignola, General Counsel to the Chancellor, advised the board president that the board"s action violated Chancellor"s regulation C-37 because the board had not first evaluated Superintendent Quinn"s past performance. On December 3, 1999, the board voted again not to renew Superintendent Quinn"s contract, and by letter dated January 27, 2000, provided a detailed list of concerns about Mr. Quinn"s performance to the Chancellor (pursuant to Chancellor"s regulation C-37, a decision by a community school board not to renew the contract of a superintendent must be submitted to the Chancellor for approval, along with written reasons for the recommendation). In a detailed response dated March 22, 2000, Mr. Vignola requested additional information from the board in support of its concerns. By letter dated March 23, 2000, the Chancellor directed the board not to advertise the superintendent"s position until he reached a decision regarding Mr. Quinn"s status.

On May 19, 2000, the Chancellor met with the board to clarify whether the board"s recommendation not to renew the superintendent"s contract had a rational basis. Thereafter, the Chancellor apparently granted the board permission to search for an acting superintendent (pursuant to Chancellor"s regulation C-37, a community school board "may temporarily assign an acting superintendent with the approval of the Chancellor" when no permanent superintendent has been chosen to fill a vacancy).

By letter dated June 1, 2000, board president Louise Emanuel formally responded to Mr. Vignola"s March 22, 2000 request for additional information. Shortly thereafter, the Chancellor granted permission to the board to advertise for a superintendent.

Apparently, the board"s search for an acting superintendent yielded three potential candidates, including Superintendent Quinn. Although the board submitted two of those candidates for approval, one on June 17 and the other on June 29, 2000, the Chancellor rejected both as unqualified in letters dated June 28 and 30, 2000, respectively. The Chancellor then directed the board to meet with him on June 30, 2000 for a conciliation meeting. At that point, the only remaining candidate was Superintendent Quinn.

On June 30, 2000, the board met with members of the Chancellor"s staff to discuss the superintendent vacancy. Petitioners contend that the Chancellor"s staff essentially forced the board to appoint Mr. Quinn as acting superintendent by asserting that the board had no other options. According to Judy E. Nathan, Esq., First Deputy Counsel to the Chancellor, who was present at the meeting, five of the six board members present voted to appoint Mr. Quinn as acting superintendent, with the approval of the Chancellor. The record indicates that petitioner board member Crowley Grogan opposed the appointment, and that petitioner board member Chan was not present.

By letter dated July 11, 2000, petitioners appealed to respondent Board of Education of the City of New York, alleging, among other things, that the Chancellor failed to fairly consider the candidates submitted by the board for the acting superintendent position, deliberately delayed approving the board"s decision not to renew Superintendent Quinn"s contract and essentially forced the board to appoint Quinn as the acting superintendent. On or about July 24, 2000, the Chancellor filed a response, an appeal panel was designated pursuant to 8 NYCRR "113.19 and on September 12, 2000, oral argument was held. By decision dated October 18, 2000, respondent dismissed petitioners" appeal on standing grounds. This appeal ensued.

Petitioners contend, among other things, that the Chancellor improperly denied them their "fundamental right to an attorney," improperly forced the board to appoint Quinn as acting superintendent and that Quinn has no legal authority to serve in the position because the board never publicly approved his appointment. For relief, petitioners request, among other things that I "[s]et aside the Chancellor"s ruling that [they] are not entitled to " counsel," remove Quinn as acting superintendent unless the board votes publicly in favor of the appointment and set a timetable for the board to find a "suitable" acting superintendent. Petitioners" request for interim relief was denied on November 21, 2000.

Respondent contends, among other things, that petitioners lack standing to challenge Quinn"s assignment as acting superintendent, that respondent properly dismissed the appeal because it only has authority to entertain a challenge to the suspension or removal of a community school board or board member, that the board is a necessary party to this appeal and that petitioners have failed to establish a basis to overturn respondent"s dismissal of their appeal.

In reply to respondent"s standing challenge, petitioners assert that Doreen DeMartini, respondent"s director of community school district affairs, "advised certain school board members that they could not be party to this appeal." Petitioners also attach unsworn letters from three fellow board members stating that each supports the appeal.

Although petitioners seek to challenge certain actions of the Chancellor related to the board"s effort to replace its superintendent, petitioners appeal from a decision of respondent ostensibly acting in its capacity as an appeal board pursuant to Education Law "2590-l. The Commissioner"s review of an appellate determination of the New York City Board is limited to ascertaining whether the challenged determination was arbitrary, capricious, or contrary to law or sound educational policy (Appeal of Coleman, 37 Ed Dept Rep 608, Decision No. 13,940).

Although the issue was not addressed in respondent"s decision, respondent correctly points out that its jurisdiction to entertain an appeal from action of the Chancellor is limited, and does not include the matters raised by petitioners below. Pursuant to Education Law "2590-l(1)(a), where the Chancellor finds that a "community board and/or superintendent fails to comply with any applicable provisions of law, by-laws, rules or regulations, standards, directives and agreements," he may, among other things, "issue an order requiring the community board and/or superintendent to cease its improper conduct or to take required action." Further, this provision authorizes the Chancellor to enforce such order by the use of "appropriate means," including "supersession of the community board and/or superintendent by the Chancellor or one or more trustees appointed by him"" or "suspension or removal of the community board and/or superintendent or any member or members thereof." Pursuant to Education Law "2590-l(2), respondent is authorized to act as an appeal board where the Chancellor has issued such an order. Although petitioners claim that the board was threatened by a member of the Chancellor"s staff with supersession if it did not appoint Superintendent Quinn to the acting position, there is no evidence in the record that the Chancellor actually superseded the community board. Rather, it appears that the board voted, albeit perhaps reluctantly, to appoint Mr. Quinn to the acting superintendent position. Further, although the Chancellor conducted a conciliation meeting with the board, there is no evidence in the record that petitioners were appealing an order of the Chancellor requiring the board to take specific action. Nor did petitioners raise any issue related to the removal of the community board or a member thereof. Accordingly, I find that petitioners" appeal to respondent was outside the scope of respondent"s authority under "2590-l.

Even if I were to find that petitioners" appeal to respondent was proper, I would agree that respondent correctly dismissed petitioners" appeal on standing grounds. Pursuant to Education Law "2590-l(2), only a "community board or any suspended or removed member and/or superintendent thereof" may appeal action of the Chancellor taken pursuant to Education Law "2590-l (see also 8 NYCRR "113.2). Petitioners, as individual board members, have no standing to appeal to respondent on behalf of the board pursuant to Education Law "2590-l or 8 NYCRR "113.2. Furthermore, since they have not been suspended or removed, petitioners lack standing as individuals. Accordingly, respondent properly dismissed petitioners' appeal on standing grounds.

Moreover, if petitioners had appealed the Chancellor"s action directly to me, the appeal would be dismissed for lack of standing. Petitioners" status as members of community school district 24 does not endow them with any greater interest than that of a district resident (Appeal of Sullivan, 33 Ed Dept Rep 566, Decision No. 13,152). Status as a resident of a school district does not, in and of itself confer standing to seek review of the action of the board of education with respect to its employees (id.). Petitioners have failed to establish that they were personally affected by the decision to appoint Mr. Quinn as acting superintendent and therefore, have no standing to bring this appeal.

Nor are the letters from three fellow board members expressing their support of this appeal sufficient to vest petitioners with authority to commence this appeal on behalf of the board. Pursuant to "275.5 of the Commissioner"s regulations, an appeal may be commenced on behalf of a board of education only upon "resolution of such board authorizing the commencement of such appeal on behalf of such" board." The failure of the board to formally authorize the commencement of this appeal also mandates its dismissal (Appeal of Board of Education of the Little Flower Union Free School District, 32 Ed Dept Rep 264, Decision No. 12,826).

In light of this disposition I decline to address the parties" remaining contentions.