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Monday, April 16, 2012

Failure to fully comply with the procedures required by the Commissioner’s regulations when filing a notice of petition is a fatal jurisdictional defect


Failure to fully comply with the procedures required by the Commissioner’s regulations when filing a notice of petition is a fatal jurisdictional defect

This ruling by the Commissioner of Education again illustrates the fact that the failure to strictly comply with the filing requirements set out in Commissioner’s regulation will preclude the Commissioner’s considering the merits of the petition or appeal. 

Petitioners had withdrawn one aspect of their appeal, conceding that it was moot.

The School District then asked the Commissioner to dismiss the “surviving” elements of their petition, which sought the removal of a member of the school board. The school board contended that these claims should be dismissed because the petitioners had failed to include the notice required by 8 NYCRR §277.1(b) in such cases in their petition.  

The Commissioner agreed, ruling that the application seeking the removal of a school board member “must be dismissed because the notice of petition is defective.”

Noting that the Commissioner’s regulations require that the notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (see 8 NYCRR §277.1[b]) the Commissioner ruled that the petitioners failed to give such notice and, instead, had used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.
  
The bottom line: A notice of petition which fails to contain the language required by the Commissioner’s controlling regulation is fatally defective and does not secure jurisdiction over the intended respondent.

The Commissioner’s decision, Decision #16,346, is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume51/d16346.html

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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