Appeal of MARK R. DORMAN from action of the Board of Education of the Webster Central School District and Adele Bovard, Superintendent, regarding an administrative appointment.

Decision No. 15,672

(October 10, 2007)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Dennis T. Barrett and Norman H. Gross, Esqs., of counsel.

MILLS, Commissioner.--Petitioner challenges the appointment by the Board of Education of the Webster Central School District (“board”) of John Carlevatti (“Carlevatti”) as Deputy Superintendent.  The appeal must be dismissed.

It appears that over the three years prior to the commencement of this appeal, while Carlevatti served as Assistant Superintendent for Administration and Personnel, he was the district’s coordinator responsible for receiving and investigating complaints brought by district employees pursuant to Title VII.  During that time, as many as eight claims of discrimination were made to the Equal Employment Opportunity Commission (“EEOC”) and/or the New York State Division of Human Rights (“DHR”).  Petitioner suggests that Carlevatti failed to investigate these claims properly and failed to resolve them favorably to the district.  Respondents point out that three of those claims were dismissed as lacking probable cause while the others remain pending in court, and that in no case has the district actually been found liable.

On March 15, 2007, respondent Bovard (“Bovard”) asked the board to approve a reorganization of the district’s central administrative structure.  As part of that reorganization, at Bovard’s request, the board unanimously appointed Carlevatti as Deputy Superintendent.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 24, 2007.

Petitioner alleges that the board has allowed an “environment of discrimination to flourish among district employees.”  He suggests that Carlevatti has contributed to that “environment” by failing to resolve claims, and that he should not have been recommended for the position of Deputy Superintendent while claims were still pending.  He further claims that Carlevatti was appointed in violation of board policy.

As a separate matter, petitioner claims that when he addressed an executive session of the board on March 15, 2007, he was defamed by the board’s counsel.

Petitioner asks that I annul the appointment of Carlevatti, and that the State Education Department investigate what petitioner considers the board’s “unethical practices.”

Respondents generally deny any wrongdoing and raise a number of affirmative defenses, including petitioner’s failure to establish facts that would demonstrate a clear legal right to the relief requested.  Respondents point out that while petitioner seeks the annulment of Carlevatti’s appointment, he has neither named nor served Carlevatti as a respondent.  Respondents also point out that the Commissioner of Education has no jurisdiction over a claim of defamation.  Respondents further assert that an appeal to the Commissioner does not provide for investigations, and that petitioner is not aggrieved within the meaning of Education Law §310, and has no standing to proceed with this appeal.

The appeal must be dismissed.  Petitioner seeks to annul the appointment of Carlevatti to the position of Deputy Superintendent, but has not made him a party to this appeal.  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’s failure to join Carlevatti requires dismissal of the appeal.

That part of the appeal which asks for an investigation of the Board of Education must also be dismissed.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).

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

THE APPEAL IS DISMISSED.

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