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Decision No. 15,404

Appeal of JOSEPH LOSCHIAVO from action of Michael Mostow, Superintendent of the Patchogue-Medford Union Free School District, regarding an employment contract and a board of education meeting.


Decision No. 15,404


(May 9, 2006)


Bond, Schoeneck & King, PLLC, attorneys for respondent, Howard M. Miller, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the terms of a contract between Superintendent Michael Mostow ("Mostow" or "respondent") and the Board of Education of the Patchogue-Medford Union Free School District ("the board"), and Mostow's actions relating to a board meeting.  The appeal must be dismissed.

The board employed Mostow as interim superintendent effective February 1, 2005, under a contract with no specific duration.  This contract permitted both parties to terminate the contract at will, with 30 days notice.  On April 19, 2005, the board approved a resolution to offer Mostow the position of superintendent of schools, subject to the terms of a written contract to be negotiated and signed between the parties and subject to the completion of due diligence by the board.  On May 18, 2005, the board resolved to approve the employment of Mostow for two periods: the first period, April 19, 2005 through June 30, 2005; and the second period, July 1, 2005 through June 30, 2010.

On May 18, 2005, a contract for the second period, July 1, 2005 to June 30, 2010, was executed by the board president, on behalf of the board, and Mostow.  The board subsequently resolved to cancel this agreement due to a dispute over certain terms, but on July 1, 2005, the board again voted to accept the contract and the contract was re-executed.

Petitioner claims that Mostow's superintendent contract should be voided because, when read together with his contract as interim superintendent, it extends the contract term to more than five years, in violation of Education Law �1711(3).  Petitioner also requests that Mostow be required to recognize a board meeting held on June 28, 2005.

Respondent claims that the written employment contract only covered a five-year period, and that there was no previous contract that extended the time period past five years. Respondent claims that the June 28, 2005 board meeting was not properly called.  Respondent also claims that the petition should be dismissed on the procedural grounds of timeliness, standing, failure to join necessary parties, and lack of personal service.

     I will first address the procedural issues.  Respondent claims that the petition should be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  In this case, Mostow's employment contract was executed on May 18, 2005 by the board president and Mostow, and re-executed by them on July 1, 2005.  Petitioner commenced this appeal on July 21, 2005, within 30 days of the re-execution of the contract, and, therefore, the appeal is timely.

     Respondent also claims that petitioner is not aggrieved and lacks standing because petitioner does not allege that Mostow's employment contract results in an unconstitutional gift of public funds.  An individual may not maintain an appeal pursuant to Education Law �310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Bermudez, 41 id. 355, Decision No. 14,712).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Polmanteer, 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Murphy, 39 id. 562, Decision No. 14,311).

     Petitioner is a district resident.  A district resident has standing to challenge an alleged illegal expenditure of school district funds. (Appeal of Gargan, 40 Ed Dept Rep 465, Decision No. 14,528; Appeal of Goldin, 38 id. 322, Decision No. 14,044).  Here, petitioner challenges the legality of an employment contract under which school district funds are being spent.  I thus find that petitioner has requisite standing to maintain this appeal.

The appeal, however, must be dismissed for failure to join the board as a necessary party.  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 D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).

     In this case, petitioner does not name the board as a respondent in the caption of the notice of petition or petition.  Therefore, the board was not properly joined as a party.  The contract that petitioner seeks to void is between Mostow and the board. Since the board's contract with Mostow would be adversely affected by a decision in favor of petitioner, the board is a necessary party to this appeal (Appeal of Kurlans, et al., 37 Ed Dept Rep 293, Decision No. 13,861).  Petitioner's failure to join the board thus requires dismissal of the petition.

     The appeal must also be dismissed for lack of personal jurisdiction over Mostow.  Section 275.8(a) of the Commissioner's regulations requires that the petition be personally served upon each named respondent.  In this case, Mostow is the only named respondent and the petition was not personally served on him.  Accordingly, the appeal must be dismissed for failure to personally serve Mostow with the petition.

     The appeal must also be dismissed as moot to the extent that petitioner asks that I require Mostow to recognize the board meeting held on June 28, 2005.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  By its subsequent actions, the board reversed the actions taken on June 28, 2005, rendering those actions moot.

     Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Education Law �1711(3) authorizes the board of a union free school district to enter into an employment contract with a superintendent "for a period of not less than three and not more than five years. . . ."  Therefore, there is a five-year statutory limit for employment contracts with superintendents.  The parties may not have two contracts in effect simultaneously, that, when read together, circumvent the five-year statutory prohibition and bind the board for a period in excess of five years (seeAppeal of Boyle, 35 Ed Dept Rep 162, Decision No. 13,501).

     Mostow claims that he had only one contract with the board to serve as superintendent and that this contract was for the five year term of July 1, 2005 through June 30, 2010.  Mostow claims that no contract governed his employment during the period April 19, 2005 through June 30, 2005.  Mostow claims that, to the extent that the wording of the May 16, 2005 board resolution approved a "contract" for the period April 19, 2005 through June 30, 2005, it was in error.

     Petitioner claims that Mostow was employed under a contract as interim superintendent until July 1, 2005, when the new contract for his employment as superintendent commenced, and that when the two contracts are read together, they bind the board to employ Mostow for more than five years in violation of Education Law �1711(3).  Even if I accept petitioner's assertion that Mostow was under the interim superintendent contract until July 1, 2005, I do not find a violation of Education Law �1711(3).  The interim superintendent contract did not specify a time period and was terminable at will by either party with 30 days notice.  It did not obligate the board to employ Mostow for any period of time.      Therefore, the only contract that obligated the board to employ Mostow for a period of time was the contract for Mostow's service as superintendent, and that period of time was five years, July 1, 2005 through June 30, 2010.  Accordingly, I do not find that the board violated Education Law �1711(3).