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Naming and serving a necessary party in an appeal to the Commissioner of Education is a critical requirement

Naming and serving a necessary party in an appeal to the Commissioner of Education is a critical requirement
Appeal of Ronald S. Miller from action of the Board of Education of the City School District of the City of Lackawanna regarding the appointment of a custodian, Decisions of the Commissioner of Education, Decision No. 15,917

Ronald S. Miller, a member of Lackawanna Board of Education, asked the Commissioner of Education to declare that the Board had violated its policies and the Civil Service Law when it appointed Timothy Gross as a custodian on December 17, 2008. Miller further asked the Commissioner to remove Gross from the position and direct that David Parker be appointed to the position in his stead.

The Commissioner dismissed Miller?s application because he failed ?to join Mr. Gross as a necessary party.?

The Commissioner said 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.? Joinder requires that the "necessary party" [1] be clearly named as a respondent in the caption and [2] be 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.

In this instance Miller neither served Gross with a copy of the petition, nor did he name him as a respondent. Accordingly, said the Commissioner, Miller?s appeal must be dismissed for failure to join a necessary party.

The Commissioner?s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume48/d15917.htm

Full post as published by New York Public Personnel Law on May 22, 2009 (boomark / email).