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Appeal to the Commissioner of Education dismissed for failure to name a necessary party

Appeal to the Commissioner of Education dismissed for failure to name a necessary party
Appeal of J.S. from action of the Board of Education of the Jordan-Elbridge Central School District and Superintendent Marilyn Dominick regarding a transfer.
Decision No. 16,077

J.S. served as the district?s elementary school principal of the Jordan-Elbridge Central School District and was granted tenure in the tenure area of ?administrator.?

On June 8, 2009, the board authorized an investigation of complaints concerning the district?s elementary school and on the following day J.S. was transferred to the position of Special Project Administrator.

Contending that the transfer was made for disciplinary reasons in violation of the due process rights afforded her under Education Law §3020-a, J.S. asked the Commissioner to direct that the district to reinstate her as Elementary School Principal and that all references to the transfer be expunged from district records.

The Commissioner dismissed the appeal ?for failure to join a necessary party.? Commenting that ?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.

The Commissioner explained that the remedy sought by J.S. is ?reinstatement to her previous position as Elementary School Principal and that position is currently held by Elizabeth Primo, the interim Elementary School Principal, Primo?s rights would be adversely affected by a determination in [J.S.?s] favor.? Thus Primo is a necessary party and the appeal must be dismissed because of the failure of J.S. to name, and serve her, in the appeal.

In addition, the Commissioner stated that the appeal ?must also be dismissed as untimely.? An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, "unless any delay is excused by the Commissioner for good cause shown." The record indicated that J.S was reassigned to the Special Project Administrator position on June 9, 2009 but her petition was not served until October 13, 2009.

Finally, the Commissioner said that J.S.?s appeal, absent the above noted procedural defects, would have been dismissed on the merits.

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

The Commissioner said that a board of education has "broad discretion in assigning members of its professional staff, so long as the employee?s tenure rights are not infringed upon." In this instance, said the Commissioner, notwithstanding J.S.?s claim that her was reassignment for disciplinary reasons and she was not accorded the due process protections of Education Law §3020-a, he did not find that J.S. had adequately demonstrate that her transfer was for disciplinary reasons and J.S. did not offered any evidence that disciplinary action was being contemplated prior to the reassignment.

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16077.htm

Full post as published by New York Public Personnel Law on July 09, 2010 (boomark / email).