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Decision No. 16,184

Appeal of GREG JOHNSTON from action of the Board of Education of the Manhasset Union Free School District regarding employee discipline and application for the removal of Dr. William Shine, as assistant to the superintendent.

Decision No. 16,184

(December 9, 2010)

Frazer & Feldman, LLP, attorneys for respondent, James H. Pyun, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of Charles Cardillo, superintendent of the Manhasset Union Free School District (“Cardillo”), not to discipline Dr. William Shine, assistant to the superintendent (“Shine”).  Petitioner also seeks Shine’s removal.  The appeal must be dismissed and the removal application denied.

Petitioner alleges that Shine threatened physical violence against him during a May 6, 2010 meeting of respondent board (“board”).  By letters dated May 7 and May 24, 2010, petitioner complained about Shine’s alleged conduct and requested that Cardillo take disciplinary action against him.  By letter dated June 2, 2010, Cardillo indicated that no disciplinary action would be taken.  This appeal ensued.

Petitioner contends that Shine’s alleged conduct at the May 6, 2010 meeting warrants his removal or, in the alternative, disciplinary action.  Relying on Education Law §2217, petitioner also challenges Cardillo’s failure to discipline Shine and, although not included in his prayer for relief, maintains that Cardillo “should be disciplined” for such failure.  While petitioner has named the board as a respondent in this proceeding, he does not appear to raise any allegations or claims against it.

The board argues that the appeal and application must be dismissed on several grounds, including failure to state a claim upon which relief may be granted, failure to join necessary parties, failure to exhaust administrative remedies and lack of standing.

Both the appeal and the application 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Here, both Cardillo and Shine would clearly be affected if I were to award the relief sought by petitioner.  However, the record indicates that petitioner served only the district, by personally serving its business manager.  There is no indication that either Cardillo or Shine was served with a copy of the notice of petition and petition.  Moreover, Cardillo was not named in the caption of the petition or in the notice of petition.  Accordingly, petitioner’s claims against both Cardillo and Shine must be dismissed.

Petitioner’s application for Shine’s removal must also be dismissed because the notice of petition is defective.  The notice accompanying a removal application must specifically advise a school officer that an 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 (Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660).

Although petitioner’s claims must be dismissed for the reasons described above, I note that the petition also fails to state a claim upon which relief may be granted.  First, petitioner cites Education Law §2217 as the legal basis for his challenge to Cardillo’s failure to discipline Shine.  However, such reliance is misplaced, since this provision pertains only to official acts of a district superintendent of schools of a board of cooperative educational services, rather than a superintendent of schools of a school district (seeAppeal of Hebrew Academy of Nassau County, 34 Ed Dept Rep 449, Decision No. 13,378).

Moreover, Education Law §306 authorizes the Commissioner to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer.  Education Law §2(13) defines “school officer” by specifically identifying a number of positions and including any “other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.”  Assistant superintendents are district employees and not school officers subject to removal under §306 (Application of Eagelfeld, 36 Ed Dept Rep 186, Decision No. 13,696).  I therefore lack jurisdiction to remove Shine pursuant to Education Law §306.

Finally, to the extent petitioner requests that I take disciplinary action against Shine, I have no authority to do so.  It is the board of education, rather than the Commissioner of Education, which has authority to take disciplinary action against a school district employee (seeAppeal of Gonzalez, 48 Ed Dept Rep 415, Decision No. 15,900).

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