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Tuesday, August 04, 2015

Alternative to personal service of a petition upon a respondent in an appeal to the Commissioner of Education may be authorized


Alternative to personal service of a petition upon a respondent in an appeal to the Commissioner of Education may be authorized
Decisions of the Commissioner, Decision #16798

One of the objections raised by the School District in this appeal submitted by Stan J. Ercolano to the Commissioner of Education challenging the election of certain members of the School Board to the Board was that the petition was served on one of the named respondents [Pierce] by mail rather than by personal service. 

Addressing this particular objection included among a number of procedural challenges advance by School Board in its efforts to have Ercolano’s appeal dismissed, the Commissioner noted that §275.8(d) of the Commissioner’s regulations provides, in pertinent part. That “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent.” (emphasis in the Decision).

However, said the Commissioner, although §275.8(a) of the Commissioner’s regulations generally requires that the petition be personally served upon each named respondent,  §275.8(a) provides, in pertinent part that, “if a named respondent cannot be found upon diligent search, ... [service may be made] as otherwise directed by the commissioner.” 

The decision indicates that Ercolano had sent a fax to Education Department’s Office of Counsel requesting permission to effect alternate service by mail upon Pierce after he had “unsuccessfully attempting to effect personal service” upon Pierce at various different times and on different days.  The Office of Counsel sent Ercolano a letter granting him permission to serve Pierce by regular and certified mail, return receipt requested.  Ercolano then effected service, as approved, that same day.
 
The Commissioner said that it appears that Pierce “chose not to pick up the copy of the pleadings sent to her by certified mail” and found that service upon Pierce “was proper and made in compliance with the alternative service petitioner was authorized to use pursuant to §275.8(a) of the Commissioner’s regulations.”

The School District also argue that Ercolano “should have continued to attempt personal service” on Pierce even after the pleadings had been mailed to her by Ercolano as he was directed to do in Office of Councel’s approval letter.  However, affidavits of service submitted by Ercolano stated that an additional attempt to personally serve Pierce was made on the evening of June 16, 2011, but was unsuccessful.

The Commissioner ruled that in this instance “service was proper and [declined] to dismiss the appeal for failure to properly serve Pierce … and join her as a necessary party. 

The decision is posted on the Internet at:

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