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Decision No. 16,470

Appeal of STACIA KRONISER from action of the Board of Education of the Edwards-Knox Central School District regarding removal of the board president.

Decision No. 16,470

(April 29, 2013)

Silver and Collins, attorneys for respondent, Andrew W. Silver, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the failure of the Board of Education of the Edwards-Knox Central School District (“respondent”) to remove Teresa Hogle (“Hogle”) from office as a board member. As relief, she seeks Hogle’s removal. The appeal must be dismissed.

Petitioner, a district resident, appeared before respondent on February 6, 2012 requesting that it remove Hogle from office due to alleged misconduct and violations of law. At its February 21, 2012 meeting, respondent discussed the matter in executive session and subsequently denied petitioner’s request. This appeal ensued.

Petitioner contends that Hogle should be removed from the board for her “willful misconduct, unprofessional attitude, breach of confidentiality [and] breaking the law.”

Respondent maintains that the appeal must be dismissed as untimely and for failure to set forth a clear and concise statement of petitioner’s claim.

I will first address several procedural issues. Initially, I note that the petition is not entirely clear as to whether petitioner seeks only to challenge respondent’s February 21, 2012 determination not to take any action on petitioner’s request for Hogle’s removal or whether she is directly applying to me for such removal pursuant to Education Law §306. The petition before me contains both the notice of petition required by §275.11 of the Commissioner’s regulations for appeals brought pursuant to Education Law §310 and the notice of petition required by §277.1(b) of the regulations in applications for the removal of a school officer pursuant to Education Law §306.Although the petition consists of general allegations regarding respondent’s failure to remove Hogle, in the prayer for relief, petitioner seeks no relief against respondent and asks only that Hogle be removed from office.

Notably, respondent asserts that the petition fails to set forth a clear statement of petitioner’s claim. A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8NYCRR §275.10). Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.). Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer,48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729). Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926;Appeal of Darrow, 43 id. 394, Decision No. 15,029).

While dismissal on this basis is not lightly undertaken, particularly where a petitioner appears pro se, it is warranted in this instance. The petition, as noted, is confusing and unclear as to whom it is brought against and consists primarily of a listing of exhibits. With respect to any removal claim, although petitioner asserts that Hogle has “broken NYS Law, Education Law, and also the policies of Edward-Knox,” the petition lacks further specificity to inform any respondent of the nature of thec laim. For these reasons, I am constrained to dismiss the appeal for failure to comply with §275.10 of the Commissioner’s regulations.

Moreover, petitioner has failed to join Hogle, a necessary party, as a respondent to the appeal. Regardless of whether petitioner is solely challenging the board’s failure to remove Hogle or, alternately, requests that I do so directly, as relief she clearly asks that Hogle be removed.

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).

Should petitioner prevail, Hogle clearly would be adversely affected. However, Hogle is not named in the caption of the appeal, nor has she been served with the notice or petition. Section 275.8(a) of the Commissioner’s regulations requires that an appeal be commenced by personal service of a copy of the petition upon each named respondent. Petitioner’s affidavit of service shows that service of the petition was made on the superintendent of schools but not on Hogle. Because Hogle is a necessary party and petitioner failed to join her as a respondent to the appeal, dismissal is further warranted.

In light of this disposition, I need not address theparties’ remaining contentions.