December 15, 2010

Failure to serve notice of an appeal to the Commissioner of Education as set out in the Commissioner’s regulations a fatal procedural defect

Failure to serve notice of an appeal to the Commissioner of Education as set out in the Commissioner’s regulations a fatal procedural defect
Matter of Blake v Mills, 2010 NY Slip Op 09057, Decided on December 9, 2010, Appellate Division, Third Department

Shango Blake, a principal in the New York City School District, was charged with 14 counts of misconduct. An arbitration hearing was held pursuant to a collective bargaining agreement and Education Law §3020(3), following which the arbitrator found Blake guilty of misconduct and recommended that petitioner's employment be terminated.

After the Chancellor of the New York City Department of Education implemented the penalty recommended, Blake attempted to appeal the Chancellor's decision to State’s Commissioner of Education by serving copies of the appeal papers on a clerk in the Chancellor's office and on an administrator in the community school district superintendent's office.

The Commissioner rejected Blake’s appeal, noting that he had not complied with the service requirements for appeals to the Commissioner from decisions of the Chancellor.

The Appellate Division sustained the Commissioner’s dismissal of Blake’s appeal based on his finding of “improper service.” The court observed that “In disciplinary matters governed by Education Law §3020(3), appeals to the Commissioner must be instituted by "effecting personal service of a copy of the appeal . . . upon: (1) the chancellor, or a person designated to accept service on behalf of the chancellor; and (2) the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service."*

As Blake did not “effect personal service upon the Chancellor” nor upon the New York City Law Department, "the exclusive agent designated to accept service on behalf of the Chancellor," the Appellate Division held that Blake’ failed to comply with the applicable regulation, 8 NYCRR 281.6, and thus the Commissioner's dismissal of his administrative appeal for such defective service was neither arbitrary nor capricious nor was it an error of law.

* Blake did not show that the person served in the community school district superintendent's office was specifically designated to accept service on the superintendent's behalf, thus such service was defective.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09057.htm

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