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Decision No. 14,885

Appeal of ALBERT A. EDWARDS from action of the Board of Education of the City School District of the City of Yonkers regarding denial of tenure.



(June 6, 2003)


Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Lawrence W. Thomas, Esq., of counsel 

MILLS, Commissioner.--Petitioner challenges the rejection by the Board of Education of the City School District of the City of Yonkers ("respondent") of its superintendent"s tenure recommendation regarding certain probationary administrators.  The appeal must be dismissed.

Respondent voted on June 19, 2002 to reject the recommendation of its superintendent to grant tenure to 13 probationary administrators.  Education Law "3031(b) makes such a vote advisory.  At a subsequent meeting on July 24, 2002, respondent made a final determination to grant tenure to 11 of the 13 administrators.

Petitioner, a trustee of respondent, alleges that respondent"s June 19, 2002 advisory vote lacked a rational basis and was motivated by racial animus.  He asserts that one administrator"s civil rights were violated, and that certain other parties have suffered personal damage as a result of the alleged violation.  He further claims that respondent has tarnished its image thereby breaching its fiduciary duty, and that, as a trustee of respondent, petitioner has been personally affected by the alleged damage to respondent"s image.  Petitioner requests that I review the facts surrounding respondent"s June 19 advisory vote and that all of the administrators recommended by the superintendent for tenure be granted such tenure. Petitioner"s request for interim relief was denied on August 5, 2002. 

Respondent asserts that petitioner lacks standing to appeal "on behalf of" the administrators.  It also alleges that petitioner has failed to join necessary parties and that the matter was not ripe for review at the time the appeal was commenced.  It finally avers that the appeal has become moot and that the Commissioner lacks authority to grant the relief requested.

I must first address a procedural matter.  On or about September 12, 2002, documents purporting to be a "reply to affidavit in opposition to application for stay and reply to BOE answer to petition" were personally served on respondent"s executive secretary and others.  The Commissioner"s regulations require that a reply "shall be served within 10 days after service of the answer to which it responds...If the answer has been served by mail..., the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period." (8 NYCRR "275.14[a])  Respondent mailed its answer on August 21, 2002.  Accordingly, petitioner"s reply is untimely and I will not consider it.

The appeal must be dismissed.  The Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Monahan, 42 Ed Dept Rep ___, Decision No. 14,824; Appeal of Lee, 40 id. 19, Decision No. 14,407; Appeal of Swanson, 39 id. 312, Decision No. 14,247).  On July 24, 2002, respondent granted tenure to 11 of the administrators named in the petition.  They have received the relief sought by petitioner and the appeal is therefore moot as to them.

Petitioner lacks standing to appeal respondent"s vote as to the remaining two administrators.  Pursuant to Education Law "310, an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights.  Only persons who are directly affected by the action being appealed have standing (Appeal of Simms, 42 Ed Dept Rep ____, Decision No. 14,773; Appeal of Allen and Wong, 40 id. 372, Decision No. 14,501; Appeal of Murphy, 39 id. 562, Decision No. 14,311), and petitioner"s status as a member of respondent board of education does not endow him with any greater interest (Appeal of Allen and Wong, supra).  Petitioner himself is not the subject of respondent"s advisory vote concerning tenure.  Furthermore, beyond his unsubstantiated claim that as a trustee of the board he is "personally affected by the action being appealed, due to the damage done to the board"s image," petitioner presents no evidence that he has suffered personal damage or injury to his civil, personal or property rights.  Accordingly, petitioner lacks standing to challenge the advisory vote taken by respondent. 

Finally, two of the administrators commenced a separate appeal challenging respondent"s determination to deny them tenure and their claims have been addressed (see, Appeal of Dituri, 42 Ed Dept Rep ___; Decision No. 14,882).

In light of this disposition, I need not address the parties" remaining contentions.