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Decision No. 14,822

Appeal of RICHARD LANDER, RICHARD SANDLER, K.C. GARN and DONNA SAUER-JONES from action of Jeffrey Nober, Carol Nearing, Jerry Triolo, William Erdman, and Tim Lanese, as members of the Board of Education of the Sullivan West Central School District, Michael Johndrow, Superintendent, and Margaret Tenbus, principal, regarding a principal position.

Decision No. 14,822

(December 23, 2002)

Girvin & Ferlazzo, P.C., attorneys for petitioners, Kristine Amodeo Lanchantin, Esq., of counsel

Shaw & Perelson, LLP, attorneys for respondents, David S. Shaw, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the action of the Board of Education of the Sullivan West Central School District ("board") transferring a principal without the recommendation of the superintendent. The appeal must be dismissed.

The district is a newly merged central school district that currently has two high schools grades 7 through 12, but plans a single junior high school for grades 7 through 8 and a single high school for grades 9 through 12 for the 2003-2004 school year. Respondent Tenbus is the Jeffersonville campus principal for grades 7 through 12. Petitioners are four members of the board who voted against the following resolution proposed by respondent Triolo at a meeting on October 11, 2001:

...that the Board of Education hereby appoints Margaret Tenbus to the position of High School Principal of the new Sullivan West High School effective October 12, 2001, with such appointment constituting a transfer within the same transfer area of employment.

Respondents Nober, Nearing, Triolo, Erdman and Lanese voted in favor of the resolution. Respondent Johndrow recommended against the transfer.

Petitioners assert that respondent board members violated Education Law ""1709 and 1711, the superintendent"s employment contract and the board"s own policies by transferring Ms. Tenbus to a new, as yet uncreated, principal position. They seek nullification of the October 11 resolution and a determination that only the superintendent has authority to transfer principals. Petitioners" request for interim relief was denied on December 4, 2001.

Respondents assert that the petition must be dismissed because petitioners: failed to personally serve the individual respondents; failed to obtain jurisdiction over the board; lack standing to challenge the resolution and enforce the superintendent"s employment agreement; and fail to meet their burden of proof. Respondents also state that respondent Tenbus has only engaged in planning sessions for the transition of students to the new high school while continuing to serve as principal at the Jeffersonville campus.

I must first address several procedural issues. Petitioners request permission to submit a reply memorandum and affidavit. To the extent that they contain information about events that occurred after initial papers were submitted, I accept petitioners" submissions.

Section 275.8(a) of the Commissioner"s regulations provides in pertinent part:

A copy of the petition, together with all of petitioner"s affidavits, exhibits, and other supporting papers,...shall be personally served upon each named respondent....If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools....(emphasis added)

The record shows that petitioners served a copy of the petition upon the district clerk and respondents Johndrow and Tenbus, but failed to personally serve the other individually named respondent board members. Where a petitioner fails to serve individually named respondents, claims against those respondents individually must be dismissed for lack of jurisdiction (Appeal of Bluemke, et al., 39 Ed Dept Rep 447, Decision No. 14,281). Hence, all claims against respondents Nober, Nearing, Triolo, Erdman and Lanese individually must be dismissed.

Respondents argue that Bluemke also stands for the proposition that failure to serve individually named board members necessitates dismissal of the appeal in its entirety. In Bluemke, I dismissed the claims only as against the individually named respondents for lack of personal service. The appeal, however, was dismissed in its entirety because it was untimely.

Respondents further contend that the appeal must be dismissed because service upon the district clerk is insufficient to confer jurisdiction over the board where the board itself is not named as a respondent. In the recent Appeal of Goldin, et al. (40 Ed Dept Rep 639, Decision No. 14,573), petitioners failed to name the board of education as a respondent, but rather appealed "from action of" certain individual administrators and "members of the board of education" of the district. I declined to dismiss that appeal for failure to name the board, finding that it appeared from the petition that petitioners were appealing from action of the board as an entity, and the affidavit of service was personally served on the district clerk. Thus, I stated that:

With respect to service on the board of education, I note that the caption of the appeal is ambiguous in that it names "members of the Board of Education of the Wappingers Central School District" rather than naming the "Board of Education of the Wappingers Central School District." ... [I]t appears from the petition that relief is not sought with respect to any individual member of the board of education. Service upon the district clerk is sufficient to confer jurisdiction upon a board of education (Appeal of MacKay, 39 Ed Dept Rep 815, Decision No. 14,391; 8 NYCRR "275.8[a]). Therefore, in the absence of any demonstrated prejudice to respondent board of education, I find that the petition has been properly served upon the board.

As in Goldin, petitioners in the instant case similarly served the district clerk yet failed to name the board of education as an entity. Instead, petitioners named respondents Nober, Nearing, Triolo, Erdman and Lanese "as members of the [b]oard." Also, as in Goldin, and in contrast to the other cases cited in respondents" memorandum of law, petitioners seek relief not against any individual board member, but rather from the board"s authority to transfer Ms. Tenbus. Since the board had a fair opportunity to respond to the allegations in the petition and there is no demonstrated prejudice, I find under the circumstances of this case that service upon the district clerk is sufficient to confer jurisdiction over the board (See, Appeal of Cole, et al., 37 Ed Dept Rep 407, Decision No. 13,891).

Respondents also contend that petitioners lack standing to challenge the resolution and to enforce the superintendent"s employment agreement. Pursuant to Education Law "310, individuals may not maintain an appeal unless aggrieved in the sense that they have suffered personal damage or injury to their civil, personal or property rights. Only persons who are directly affected by the action being appealed have standing (Appeal of DeCastro, 41 Ed Dept Rep ___, Decision No. 14,730; Appeal of Allen and Wong, 40 id. 372, Decision No. 14,501; Appeal of Murphy, et al., 39 id. 562, Decision No. 14,311). Status as a resident of a school district does not, in and of itself, confer standing to challenge a board of education"s actions concerning its employees (Appeal of DeCastro, supra; Appeal of Craft and Dworkin, 36 Ed Dept Rep 314, Decision No. 13,734; Appeal of Siracusa and Montana, 33 id. 563, Decision No. 13,151). Moreover, petitioners" status as board members does not confer any special standing. Accordingly, petitioners have no standing to assert the alleged employment rights of the superintendent under his employment contract.

However, petitioners do have standing to challenge the authority of the board to take action. Petitioners contend that the board lacks specific authority to transfer instructional staff without the superintendent"s recommendation. However, Education Law "1709(33) provides that a board of education shall:

...have in all respects the superintendence, management and control of the educational affairs of the district, and, therefore, shall have all the powers reasonably necessary to exercise powers granted expressly or by implication and to discharge duties imposed expressly or by implication by this chapter or other statutes.

In addition, "100.2(a) of the Commissioner"s regulations provides that "the board of education of each school district shall employ and assign to each school under its supervision a full-time principal holding the appropriate certification...." When read together, I conclude that the board possesses the authority to transfer a principal. Furthermore, nothing in the Education Law or Commissioner"s regulations requires a recommendation of the superintendent. Accordingly, I find that petitioners have failed to meet their burden of establishing a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of Fusco, 39 Ed Dept Rep 836, Decision No. 14,396; Appeal of Mayer, 39 id. 195, Decision No. 14,212).

In light of this disposition, I need not consider petitioners" remaining arguments.