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Eskridge v Nassau County BOCES, Decisions of the Commissioner Education, Decision No. 16,932
- Eskridge failed to properly serve Amanda Pirolo with a copy of her petition;
- Pirolo’s name should be removed from the petition because she has not been employed by BOCES as a teacher of the deaf since 2012;
- Eskridge failed to name the current holder of the position, Paula Hastings, in the caption of her appeal and therefore she has failed to join necessary parties;
- Eskridge’s appeal was untimely; and
- Eskridge “failed to state a claim.”
However, said the Commissioner, Eskridge’s appeal with respect to BOCES’s refusal to add her name to the preferred list was not moot but Eskridge’s appeal was dismissed “for failure to join a necessary party.”*
Dismissing Eskridge’s appeal regarding BOCES appointment of Hastings as untimely, the Commissioner explained that “this appeal was commenced in July 2013, more than eight months after Hastings was appointed and Pirolo was no longer serving in the position at that time. As Hastings would be adversely affected by a determination in favor of Eskridge, the Commissioner held that the appeal must be dismissed for failure to join Hastings as a necessary party.
Observation: Assuming, but not deciding, that Eskridge accepted a full-time position with the Bethpage Union Free School District, the precedent followed in such situations is that upon acceptance of a full-time position with a School District in compliance with Education Law §3014-b, the individual does not have a right to remain on a preferred eligible list at BOCES. In earlier Decisions of the Commissioner it was held that Education Law §§2510 and 3013 are designed to protect the rights of teachers whose positions are abolished generally. In contrast, Education Law §3014-b is intended to protect the rights of BOCES teachers whose positions are eliminated specifically because of program takebacks. When a teacher is excessed because of a BOCES program takeback, §3014-b(1) provides that " . . . each teacher employed in such a program by such a board of cooperative educational services at the time of such takeover by the school district shall be considered an employee of such school district, with the same tenure status he [or she] maintained in such board of cooperative educational services."
* A necessary party is a party whose rights would be adversely affected by a determination of an appeal in the petitioner's favor, here Paula Hastings.