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Decision No. 15,571

Appeal of JOHN DOE, by his parents, from action of the Board of Education of the Irvington Union Free School District regarding its refusal to discipline various district employees.

Decision No. 15,571

(April 12, 2007)

Kuntz, Spagnuolo, Scapoli & Schiro, PC, attorneys for respondent, Mario L. Spagnuolo, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Irvington Union Free School District (“respondent”) to commence disciplinary action against a school psychologist, principal and superintendent.  The appeal must be dismissed.
During the 2004-2005 school year, petitioners’ son was a second grade student at Dows Lane Elementary School.  The student experienced difficulty completing school work on time and exhibited various signs of anxiety and frustration at home and at school.  On November 5, 2004, after conferring with the student’s mother, the student’s teacher referred him to the school’s Instructional Support Team (“IST”) for evaluation.  On December 21, 2004, petitioners met with the IST, including the student’s classroom teacher, an occupational therapist, assistant principal, school psychologist and two reading teachers.  The student’s mother and classroom teacher reported an improvement in his social interaction with peers and the frequency of erasures on his school work.  The school psychologist recalled giving the student’s mother literature she requested on obsessive compulsive behaviors and perfectionism after the meeting.  The classroom teacher conferred with the school psychologist regarding concerns expressed by the student’s mother in email messages about his continuing anxiety.  After the student’s mother met with his classroom teacher to discuss the re-emergence of his anxiety, another referral was made to the IST on April 5, 2005. 
On May 3, 2005, petitioners again met with the IST, including the student’s first and second grade teachers, a reading teacher, a special education teacher, principal, assistant principal, and school psychologist.  The school psychologist recalled the student’s father characterizing the student’s anxiety problems as “getting worse” at home, including repetitive hair twirling, but not wanting a referral to the Committee on Special Education (“CSE”).  At the meeting, the IST and petitioners agreed that the school psychologist would administer a “behavior rating scale,” a questionnaire of over 100 questions.  The student’s teacher filled one out and a questionnaire was also sent home to the student and his parents to complete.  On May 11, 2005, petitioners returned the completed questionnaire to the school psychologist, who recalls reviewing the responses that evening at home.  The school psychologist concluded that the student’s responses displayed a “fairly normal pattern” but that two “true” answers raised concern:  “I am bothered by thoughts about death” and “sometimes I want to hurt myself.”  The student was absent from school on May 12, 2005. 
On May 13, 2005, the school psychologist went to the student’s classroom and explained to his teacher, who had participated in the IST meeting, that she wanted to speak with him.  The student accompanied the school psychologist to her office where they talked about his responses.  After deciding the student was stable and in no danger, the school psychologist walked him back to his classroom and described him as chatting “happily.”  The school psychologist then telephoned petitioners to report her conversation with the student and her conclusion that he was fine.  The student’s father complained to the school psychologist about her contact with his son, and she informed him that she told no one about taking the student from class except his teacher.  Immediately following this conversation, the student’s father telephoned the principal and superintendent to complain.  The principal told petitioners that he approved of the school psychologist’s plan to interview their son beforehand.
     Several weeks later, petitioners met briefly with the school psychologist to review the results of the behavioral evaluation.  In August 2005, the superintendent arranged for the interim director of special education to investigate petitioners’ complaint about the incident.  On December 6, 2005, he submitted a written report that found no fault with the school psychologist’s judgment in the matter and concluded that she told petitioners the truth when she reported reviewing their son’s questionnaire the evening of May 11, 2005 and that she had not informed anyone else of the specific reason why she needed to meet with the student privately, outside the class setting.  The superintendent interviewed the school psychologist and “found her candid and credible.”  He also concluded that the principal incorrectly remembered the sequence of events when he told petitioners on May 13, 2005 that he thought he had been informed of, and approved of, the school psychologist’s intention to interview the student several days beforehand.  The report concluded that the principal apparently was confused about the sequence of events and told petitioners “a different story than what actually happened.”
On January 26, 2006, respondent met in executive session at petitioners’ request to review the circumstances surrounding the school psychologist’s interview with their son.  In a report dated March 24, 2006, respondent found that the school psychologist acted appropriately and the principal confused the sequence of events and did not deliberately mislead petitioners.  This appeal ensued.
Petitioners contend that the school psychologist acted recklessly by interviewing their son without obtaining parental permission and his therapeutic medical history.   Petitioners also contend that the school psychologist and principal lied about the incident.  Petitioners assert that the superintendent breached a promise of confidentiality and privacy when she shared information about their son to the board of education.  For relief, petitioner seeks an order terminating the employment of these individuals; denying them tenure, or initiating disciplinary charges against them, as well as adverse action by licensing and certification authorities.  Petitioners also request an order instructing all school districts to promulgate written policies concerning the confidentiality/privacy of communications between school psychologists and students and to disseminate information explaining that school psychologists are not bound by the ethical and legal requirements for clinical psychologists.  Petitioners object to respondent’s memorandum of law as untimely and its request to file a sur-reply.
Respondent denies any wrongdoing by the school psychologist, principal and superintendent.  Respondent contends that the appeal must be dismissed for failure to join necessary parties.  Respondent asserts that the Commissioner lacks jurisdiction to remove tenured employees in the absence of charges brought pursuant to Education law §3020-a.  Respondent contends that the other relief requested by petitioners is not appropriate in an appeal to the Commissioner.
Respondent also asserts that the petition is not properly verified as required by §275.5 of the Commissioner’s regulations.  However, the petition submitted to my Office of Counsel contained the requisite verification.  Although petitioners should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioners are not represented by counsel and my Office of Counsel received a verified petition (Appeal of Dominguez, 45 Ed Dept Rep 134, Decision No. 15,282; Appeal of M.M., 42 id. 323, Decision No. 14,870; Appeal of McSween, 42 id. 59, Decision No. 14,775).
The appeal must be dismissed for failure to join 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 requests termination of employment, denial of tenure and initiation of disciplinary as well as referral to licensure/certification authorities against three district employees.  Because the relief sought would adversely affect these employees, they are necessary parties and petitioners’ failure to join them requires dismissal of this appeal (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).
     In view of this disposition, I need not address the parties’ other claims.