Thursday, June 02, 2016

Complying with procedural requirements in an appeal to the Commissioner of Education critical to the Commissioner’s considering the merits of the appeal


Complying with procedural requirements in an appeal to the Commissioner of Education critical to the Commissioner’s considering the merits of the appeal
Matter of the Board of Education of the Oceanside Union Free School District
Decisions of the Commissioner of Education, Decision No. 16,907

In this appeal the Petitioners asked the Commissioner of Education to remove each of the seven board members of the Board of Education of the Oceanside Union Free School District [Board] for alleged violations of School Board policies, breaches of their fiduciary duties as members of the Board, and of having conflicts of interest.  

The Commissioner addressed a number of significant procedural defects and critical jurisdictional issues in adjudication this appeal.

Although Petitioners did not provide an affidavit of service establishing service upon the Board, the affidavits of the district clerk indicated that she had accepted service on behalf of the Board. As there was no assertion that the appeal should be dismissed as to the Board for lack of proper service, the Commissioner declined to dismiss the appeal with respect to allegations against the Board.

Such was not the case, however, with respect to the Commissioner exercising jurisdiction over the individual members of the Board. Petitioners had failed to name any board member in the caption of the notice of petition or petition. Petitioners' failure to name each such board members constituted a failure to properly join as respondents each individual board member whose removal was sought, warranting dismissal of the application as against each such Board member. The Commissioner explained that “It is the notice of petition which alerts a party that he or she is required to appear and answer the allegations contained in the petition.”

Another defect noted by the Commissioner: Petitioners failed to personally serve any individual board members with a copy of the petition and notice of petition.

Service of pleadings and supporting papers set out in 8 NYCRR §275.8(a), of the Commissioner’s regulations, are applicable to proceedings seeking the removal of a school officer  [see 8 NYCRR §277.1] They provide, in pertinent part, that “A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at respondent’s residence with some person of suitable age and discretion ... or as otherwise directed by the Commissioner.”

Although the record contained seven affidavits of service indicating that seven copies of the petition in this matter were served on the district clerk in an attempt to effectuate service on each of the seven individual board members, the affidavit of the district clerk stated that she accepted service only on behalf of the board and that she was not authorized to accept service on behalf of the individual board members. 

Although Petitioners submitted an affidavit from their process server stating that the district clerk gave “specific assurance” that she was authorized to accept service on behalf of the individual board members, in a sur-reply the School District submitted a second affidavit from the district clerk indicating that she never informed the process server that she was authorized to accept service on behalf of the individual board members. 

As in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, the Commissioner said that in the light of the conflicting affidavits, she could not conclude that there was valid service on the individual board members. Further, said the Commissioner, the record does not indicate that any request for "alternate service" was made by the Petitioners.

As to the individual board members, as they were not personally served, the applications for their removal was denied. Notwithstanding this, if service upon the individual board members is deemed defective, the Commissioner said that she could “proceed with this petition as against the Board as an entity pursuant to Education Law §[310]” and as noted above, she declined to dismiss Petitioners’ appeal with respect to allegations against the Board.

As to the School District’s claim that Petitioners’ appeal should be dismissed as untimely as it was commenced more than 30 days after the actions to which Petitioners object, and Petitioners acknowledge that their appeal is untimely, Petitioners argued that “they were not advised that they had the right to appeal [the Board’s] determination and that they filed multiple complaints with Office of Civil Rights Compliance [OCR], erroneously believing that OCR was the only remaining option to address [the Board’s] alleged misconduct.  They then argued that “as pro se litigants, they are entitled to a liberal interpretation of the Commissioner’s regulations.”* 

The Commissioner commented that “except in unusual circumstances,” ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal and that the record contains no evidence that any unusual circumstances are present here.

Thus, ruled the Commissioner, “the appeal must be dismissed as untimely.”

Additionally, Petitioners contended that the Board’s was made in retaliation for Petitioners’ earlier complaint to the Office of Special Education Quality Assurance [SEQA], which, said the Commissioner, raised the identical issues and incidents in a complaint filed with OCR. OCR determined that the “district proffered a legitimate, non-retaliatory reason” for the School District's decision and that “the proffered reason was not a pretext for retaliation because the district’s actions were consistent with its policies.” Accordingly, the Commissioner ruled that having chosen that forum in which to litigate their claims, Petitioners have made an election of remedies and may not relitigate the same issues in a proceeding instituted pursuant to §310 of the Education Law.

Finally, the Commissioner noted that, as stated above, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.  

In addition to their request for removal of the board members, discussed above, Petitioners sought only that “The Commissioner exercise authority to review and approve all manner of business proposed by the Board until such time as the Commissioner is satisfied that the board is acting rationally and prudently and fulfilling its fiduciary responsibilities to protect public assets and promote the educational needs of the District....”

However, an appeal to the Commissioner is appellate in nature and does not provide for investigations, nor does the Commissioner have the authority to act as an overseer over all board business or to appoint such an overseer with the power to substitute his or her opinion and determination for that of the board.

* On this point the Commissioner noted that Petitioners are both practicing attorneys and thus are held to a higher standard than non-attorney pro se litigants.

The decision is posted on the Internet at:

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

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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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