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Decision No. 15,496

Appeal of MICHELLE SMALLS, PHYLLIS G. HENRY and DELANO H. STEWART from action of the Board of Education of the Wyandanch Union Free School District regarding board practices.

Decision No. 15,496

(December 8, 2006)

Conway, Farrell, Curtin & Kelly, P.C., attorneys for respondent, Heather M. Palmore, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal certain alleged practices of the Board of Education of the Wyandanch Union Free School District (“respondent”).  The appeal must be dismissed.

On May 17, 2006, respondent allegedly waived $15,300 in fees for the use of district facilities for a summer food program.  This appeal ensued.  Respondent’s request for interim relief was denied on June 26, 2006.  

Petitioners allege that respondent selectively waives fees for organizations affiliated with its trustees. Petitioners also allege various improprieties against respondent, including, among other allegations, waste of taxpayer funds, improper hiring practices, nepotism and malfeasance.  More specifically, petitioners allege violations of Title VII of the Civil Rights Act of 1964, the American Disabilities Act (“ADA”) and the Age Discrimination Employment Act (“ADEA”) for petitioners failure to recruit, advertise or post for vacant positions, including a superintendent’s position.  Petitioners further allege that respondent violated the Equal Employment Opportunity Commission Manual and district policy by changing its district policy to permit an appointment of a superintendent without recruitment and advertising.

In addition, petitioners contend that respondent knowingly appointed a superintendent whose prior performance was the subject of negative audit findings by the State Education Department, at a salary significantly higher than previously paid by the district.  Petitioners further allege that respondent failed to produce documents that petitioners requested for this appeal. 

Respondent denies petitioners’ allegations and contends that the appeal is untimely and fails to state a cause of action upon which relief can be granted.

Initially, I must address several procedural matters, beginning with petitioners’ reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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).  All actions alleged by petitioners took place more than 30 days prior to the commencement of this appeal on June 17, 2006. Petitioners claim that the appeal was delayed because they were searching for a probono attorney to represent them in this matter.  In light of the fact that several of the alleged actions took place years ago, I find this excuse to be unreasonable.

Petitioners also request that their claims be considered timely because they reflect ongoing practice.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Appeal of Rizzo, 44 Ed Dept Rep 173, Decision No. 15,138; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804).  None of petitioners alleged actions resulted in ongoing unlawful situations.  Therefore, the appeal must be dismissed as untimely.

Moreover, petitioners request that certain persons be removed from their positions as a result of respondent’s alleged nepotism and improper hiring practices.  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).  Since petitioners failed to name such individuals in their petition, these claims must also be dismissed (Appeal of Phillips, 40 Ed Dept Rep 241, Decision No. 14,471; Appeal of Simons, 39 id. 744, Decision No. 14,367; Appeal of Looman, 39 id. 370, Decision No. 14,262).

While I am constrained to dismiss this appeal on procedural grounds, I note that petitioners have made serious allegations in relation to respondent’s recruitment and appointment of candidates for professional positions.  Therefore, I urge respondent to carefully review its policies and procedures to ensure that it complies with all applicable laws and regulations and that its appointment of candidates does not undermine the ability of the school district to properly carry out its responsibilities.

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