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Decision No. 15,557

* Subsequent History: Matter of Strupp v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; December 4, 2007. *

Appeal of ANDREW D. STRUPP from action of the Board of Education of the Hyde Park Central School District regarding administrative salaries and Application for the removal of Carole A. Pickering, Superintendent.

Decision No. 15,557

(March 30, 2007)

Calhelha and Doyle, LLC, attorneys for petitioner, Moacyr R. Calhelha, Esq., of counsel

Donaghue, Thomas, Auslander & Drohan, LLP, attorneys for respondents, Daniel S. Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the action of the Board of Education of the Hyde Park Central School District (“respondent board” or “board”) granting salary increases to Superintendent Carole A. Pickering (“respondent superintendent” or “superintendent”), Cora Stempel, Assistant Superintendent for Instruction, and Amanda Bagnato, Assistant Superintendent for Pupil Personnel Services.  Petitioner also seeks removal of the superintendent and asks that her teaching certificates and licenses be annulled.  The appeal must be dismissed and the application for removal must be denied.

Respondent board held an annual budget vote on May 16, 2006.  In anticipation of the vote, it appended to its published statement of estimated expenditures, salary disclosure statements for the Superintendent, the Assistant Superintendent for Instruction and the Assistant Superintendent for Pupil Personnel Services, listing the current salary for each and stating that a “merit raise [was] to be determined.”  The budget was defeated.  On June 20, 2006, a second budget vote was held.  The salary disclosure statement also stated that merit raises for those three administrators were still to be determined.  The June 20, 2006 budget passed by a vote of 2,220 to 2,173.

On June 29, 2006, a special meeting of the board was held in executive session to discuss salary and performance reviews for the three administrators.  On July 5, 2006, respondent board approved salary increases as follows:

Superintendent-- $140,000 to $160,000

Assistant Superintendent for Instruction-- $104,000 to $113,360

Assistant Superintendent for Pupil Personnel Services-- $102,500 to $108,650

This appeal ensued.  Petitioner’s request for interim relief was denied on August 14, 2006.

Petitioner claims that respondent board failed to give a detailed statement of the administrators’ salaries in its annual proposed budget as required by Education Law §1716.  Petitioner alleges that had the voters known the amount of the raises, they would have defeated the proposed budget in the June vote.  He also contends that the inaccurate and misleading budget information was part of a deliberate deception by the superintendent.  Petitioner requests that the June 20, 2006 budget vote be declared null and void, the three administrative salary increases be rescinded, and that the superintendent be removed from office for her willful disregard of Education Law §1716 and that her teaching certificates and licenses be annulled.

Respondents contend that they complied with all statutory requirements in submitting the salary disclosure statements with the statement of estimated expenditures.  They also claim that the petition should be dismissed due to petitioner’s failure to join the Assistant Superintendents for Instruction and Pupil Personnel Services as necessary parties.  They further allege that the petition is untimely as to the budget vote results from the June 20, 2006 election.  Additionally, respondents maintain that petitioner has failed to establish fraud or willful intent to evade any law on the part of the superintendent.

Initially, I note that by letter dated September 21, 2006, petitioner requested that I consider additional exhibits pertaining to alterations or extensions of the superintendent’s contract and her evaluations.  There is no indication that these documents were unavailable at the time the petition was served, as they were all dated between March and May 2006.  Therefore, I decline to consider them in rendering a decision in this appeal (Appeal of Mackay, 39 Ed Dept Rep 815, Decision No. 14,391; Appeal of Krantz, 38 id. 485, Decision No. 14,077).

The appeal must be dismissed as to Assistant Superintendents Stempel and Bagnato for failure to join them as necessary parties.  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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioner challenges the board’s decision to increase both assistant superintendents’ salaries.  Because a decision in favor of petitioner would clearly affect the salary rights of Assistant Superintendents Stempel and Bagnato, they are necessary parties to this proceeding.  Neither assistant superintendent was named in the caption nor personally served with a copy of the petition.  Therefore, the appeal must be dismissed as it pertains to them.

The appeal is also untimely as to the June 20, 2006 budget vote.  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).  Petitioner served the petition commencing this appeal on August 3, 2006, more than 30 days after the date of the vote.  Therefore, the appeal must be dismissed as to the issue of the legitimacy of the budget vote.

Respondents also contend that the appeal is untimely as to the issue of the superintendent’s salary.  However, respondent board voted to raise the superintendent’s salary on July 5, 2006, and the appeal was commenced on August 3, 2006, within 30 days of the act complained of.  I therefore decline to dismiss this portion of the appeal as untimely.

However, the claims related to the superintendent’s salary must be dismissed on the merits.  Petitioner claims that the salary disclosure statement for the superintendent was defective as it did not list a specific amount, only that a merit raise was to be determined.  Pursuant to Education Law §1716(5), a superintendent’s salary disclosure statement must be appended to a district’s written statement of estimated expenses for the ensuing year.  A salary disclosure statement is not the means by which a superintendent’s salary is set and does not bind the district to a specific amount.  A superintendent’s salary is fixed by the board of education, and not by the district’s voters (Education Law §1711[3]).  Accordingly, respondent board acted within its authority in approving a salary increase for its superintendent.

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