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Decision No. 16,021

Appeal of MARY JO HERTEL from action of the Board of Education of the City School District of the City of Elmira, Dr. Raymond Bryant, former Superintendent, and Joseph E. Hochreiter, Superintendent, regarding class rank.

Decision No. 16,021

(February 6, 2010)

Sayles & Evans, attorneys for respondents, Conrad R. Wolan, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Elmira (“board”) regarding the method for determining class rank for the class of 2009 and seeks the removal of Superintendent Joseph E. Hochreiter (“Hochreiter”) and various board members.[1]  The appeal must be dismissed.

Prior to the 2008-2009 school year, the board adopted a “weighted-point policy” for purposes of determining class rank, giving greater weight to students’ grades in advanced classes.  In November 2008, the board abandoned this policy and recalculated the class ranks of its seniors using unweighted grade point averages.  In February 2009, the board adopted a revised weighted-point policy, but did not apply it to the class of 2009.

Petitioner, a district resident and taxpayer, and apparently the grandmother of a member of its class of 2009, asked the board to re-implement its original weighted-point policy for the class of 2009.  Petitioner’s request was denied and this appeal ensued.

Petitioner argues that the board’s decision to change its policy mid-year penalized seniors who enrolled in “more rigorous courses” and was arbitrary and capricious.  In addition, petitioner accuses the board of breaching a contract with its senior class, of secretly changing its policy without adequate notice and of a neglect of duty.  Petitioner asks that I restore the original weighted-point policy to the class of 2009 and that I remove all board members who remain from the 2008-2009 school year and respondent Hochreiter.

The board and Hochreiter (collectively “respondents”) deny any wrongdoing and claim that the weighted-point policy in effect at the beginning of the school year was suspended due to ambiguities that led to errors in its implementation.  Respondents deny that they acted in an arbitrary or capricious manner and argue, among other things, that petitioner lacks standing and has failed to name and/or serve necessary parties.

By letter dated August 31, 2009, petitioner requested that I accept a “reply memorandum of law” for consideration.  Respondents object to this request as an attempt to submit a late memorandum of law.  Reply memoranda of law may be accepted only with the prior approval of the Commissioner (8 NYCRR §276.4; Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658; Appeal of Dunshee, 44 id. 414, Decision No. 15,216).  Moreover, a reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Kirschenbaum, 43 Ed Dept Rep 366, Decision No. 15,020; Appeal of T.M., 41 id. 443, Decision No. 14,740; Appeal of Muench, 38 id. 649, Decision No. 14,110).  Accordingly, while I have accepted and reviewed petitioner’s “reply memorandum of law,” I have not considered those portions which contain new allegations or which are not responsive to respondents’ answer or memorandum of law.

I find that petitioner lacks standing to seek a change in the method of determining class rank for the class of 2009.  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 Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of Himmelberg and Little, 46 id. 228, Decision No. 15,490; Appeal of Riccinto, 46 id. 39, Decision No. 15,435).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of L.A., et al., 46 id. 450, Decision No. 15,561).

Here, petitioner does not purport to be a parent, legal guardian or custodian of a student allegedly affected by respondents’ actions, nor does she allege that these actions somehow caused injury or damage to her own rights.  Status as a resident and taxpayer of a school district does not, in and of itself, confer standing to challenge a board of education’s actions concerning its students (seee.g.Appeal of Schiavi, 40 Ed Dept Rep 615, Decision No. 14,569; Appeal of Chapman, et. al., 40 id. 558, Decision No. 14,556).  Likewise, simply being the grandparent of a student does not confer standing upon petitioner either (seeAppeal of M.H., 43 Ed Dept Rep 210, Decision No. 14,973).  Accordingly, to the extent that petitioner seeks to change the method of determining class rank for the class of 2009, I find that she lacks standing and her claim must be dismissed.

I find, however, that petitioner has standing to seek the removal of Hochreiter and board members for alleged misconduct (seee.g.Appeal of D.B., 47 Ed Dept Rep 336, Decision No. 15,716; Application of Simmons, 43 id. 7, Decision No. 14,899; Application of Wilson, 41 id. 196, Decision No. 14,663), but find that her request to do so must be denied.

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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Here, the individual board members that petitioner seeks to have removed would clearly be affected if I were to award the relief sought by petitioner against them.  However, none of these individuals are named in the caption of the petition or in the notice of petition.  Accordingly, petitioner’s request for the removal of board members must be dismissed.

Further, petitioner’s request for Hochreiter’s removal must also be dismissed.  Commissioner’s regulation §275.8 requires that a copy of the petition be personally served upon each named respondent.  The affidavits of service submitted with the petition, however, indicate that petitioner attempted to serve Hochreiter by delivering a copy of her petition and notice of petition to the district clerk.  There is no indication that the district clerk is designated to accept personal service on behalf of the superintendent.  As a result, the request to remove Hochreiter must be dismissed (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of Houdek, 47 id. 415, Decision No. 15,740; Appeal of Catalan, 47 id. 176, Decision No. 15,660).

Petitioner’s request to remove Hochreiter must also be dismissed because the notice of petition is defective.  Commissioner’s regulations require that the notice accompanying a removal application specifically advise a school officer that the application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent (Application of Barton, 48 Ed Dept Rep 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of Johnson, 45 id. 469, Decision No. 15,384).

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



[1] Petitioner joins the former superintendent, Dr. Raymond Bryant, in the caption of this appeal, but seeks no relief against him.