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Decision No. 14,708

Appeal of MICHAEL ROFF from action of the Board of Education of the City School District of the City of Olean regarding an agreement.

Decision No. 14,708

(March 29, 2002)

National Education Association of New York, attorneys for petitioner, Robert W. Klingensmith, Jr., Esq., of counsel

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

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Olean ("respondent") to enter into an agreement with the Olean Young Men"s Christian Association ("YMCA"). The appeal must be dismissed.

Respondent met on August 21, 2001 and reportedly took action regarding a proposed agreement with the YMCA. Petitioner alleges that respondent voted to enter into the agreement. Respondent states that its president entered into the agreement at the meeting. Neither party has submitted minutes of the board meeting or any other document clarifying respondent"s alleged action as evidence in this appeal. An unexecuted copy of the purported agreement was attached as an exhibit to the petition.

The agreement states that the Olean YMCA will operate the indoor swimming pool at the Olean Middle School, provide around-the-clock maintenance of the pool water and inspect and clean the pool and surrounding areas regularly. It also states that the YMCA will supply staff certified "at least as teaching assistants" to instruct district students at the pool under the general supervision of the district"s director of physical education and athletics. The agreement further provides that certified school district staff will develop the aquatic program to be offered by the YMCA. The agreement requires the school district to pay the YMCA $56,390 for the 2001-2002 school year and states that it is terminable by either party on thirty days" notice. Two footnotes state that the YMCA will provide supervision for 200 hours of community swimming at the pool at no additional cost and that the district will make the pool available to the YMCA at no cost for its swim teams "as the schedule permits." An attachment indicates that the agreement covers instruction for students in grades 3-12.

Petitioner, a district resident, alleges that the agreement is improper and/or illegal and asks me to void it or bar the district from entering into it if it has not already done so. He contends that the agreement violates the separation of church and state, results from a conflict of interest to the extent that the school superintendent also serves on the YMCA board of directors, and is not in the best interest of either the district or its students. He argues that it would be inappropriate for anyone other than a district employee to offer instruction to district students or take responsibility for maintenance of district property.

Respondent argues that petitioner has failed to join a necessary party--the YMCA. Respondent also contends that the YMCA has provided aquatics instruction to district students for at least the past 14 years, that the district always has been satisfied with the quality of instruction and that the agreement is legal and proper. Respondent asserts that it will comply with statutory requirements regarding fingerprinting and background checks of YMCA staff.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Gargan, 40 Ed Dept Rep __, Decision No. 14,528; Appeal of World Network International Services, 39 id. 30, Decision No. 14,164). Here, petitioner requests that I void respondent"s agreement with the YMCA or direct respondent not to enter into such an agreement if it has not already done so. Clearly, the rights of the YMCA would be affected by a determination in favor of petitioner. The YMCA is a necessary party to this proceeding, and petitioner's failure to join the YMCA requires dismissal of this appeal (Appeal of Gargan, supra; Appeal of World Network International Services, supra).

In light of this determination, I need not address the parties" remaining contentions. I note, however, that all secondary students must receive physical education instruction from a certified physical education teacher (8 NYCRR "135.4[c][2][ii]). Teaching assistants may provide direct instruction to students only under the general supervision of a licensed certified teacher (8 NYCRR "80-5.6 [b][1][i]). The proposed agreement, by its terms, appears to comply with these requirements.