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Wednesday, May 03, 2017

An unexcused procedural omission means the Commissioner of Education will not address the merits of an appeal

An unexcused procedural omission means the Commissioner of Education will not address the merits of an appeal
Appeal of Susan Sudano, Decisions of the Commissioner of Education, Decision #Decision 17,078

This decision demonstrates the importance complying with all of the necessary procedural steps when filing an appeal with the Commissioner of Education.

Susan Sudano was a tenured teacher employed in the district in the tenure area of remedial reading. As the result of a position in her tenure area being abolished, Sudano  was "excessed" and her name was placed on a preferred list. Sudano, contending that less senior teachers in her tenure area were retained or appointed from the preferred list, filed an appeal with the Commissioner of Education  seeking reinstatement to her former position. However, the Commissioner never addressed the merits of her complaint as the result of her failing to satisfy a number of procedural requirements.

The first issue addressed by the Commissioner was  Sudano's satisfying the requirement that her appeal must be timely by filing it within 30 days of the date of the decision or the performance of the act complained of unless any delay in meeting this 30-day deadline is excused by the Commissioner "for good cause shown."

In response to the School District's argument that Sudano's appeal was untimely, the Commissioner said that although an appeal must be commenced within the 30-day deadline, earlier Commissioner decisions indicated that "where the alleged wrong is that another teacher has been appointed to a position in violation of the petitioner’s preferred eligibility rights, the petitioner does not become aggrieved until the date that another person commences service in the position at issue." Here the Commissioner said that to the extent that Sudano contends that the School District violated Education Law §3013(3) "by failing to recall her from the preferred eligibility list to vacant positions that were filled by other teachers, her appeal was timely,"  the Commissioner explained that although she agreed with the School District that Sudano was required file her appeal within 30 days of the effective date the position was abolished, there was a "conflict in past Commissioner's decisions" that was resolved in Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582. 

In Gordon the Commissioner excused a delay in commencing an appeal within 30 days after the effective date of the abolition of the position and indicated that delays in commencing similar appeals pending on the date of that decision also would be excused where service was made within 30 days of the date on which another teacher commenced service in a position to which the petitioner claimed an entitlement. As Sudano's appeal was pending on the date the Gordon was decided, the Commissioner excuse Sudano's delay in bringing her claim that she was not the least senior teacher in the tenure area of the position abolished, "for the reasons stated in Appeal of Gordon."

However, there were other procedural requirements that had to be satisfied such as personal service of the petition upon each named respondent and, if a school district is named as a respondent, "service upon the school district" was required to be made "personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

Further, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such as a "necessary party." In addition, the Commissioner said that "Joinder requires that an individual be clearly named as a respondent in the caption [of the petition] and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense."

Sudano, however, had "initially failed to properly serve two respondents, Hanwright and Paniccia," said the Commissioner. She then attempted to effect service upon Hanwright and Paniccia, by serving papers upon a “person of suitable age and discretion.”  The affidavits of service, however, did not demonstrate that Sudano made "any diligent attempt" to serve Hanwright and Paniccia personally before resorting to "substitute service."

Although Sudano did effect personal service upon both individuals later, such service was effected more than 30 days after Hanwright and Paniccia began to serve in the positions which Sudano claimed she was entitled by reason of her seniority.  As Sudano "offered no excuse for the delay in effecting personal service and in the absence of evidence of diligent efforts to effect timely personal service," on Hanwright and Panicca, the Commissioner said that she declined to excuse the delay. As a result, neither Hanwright and Panicca had been properly joined as parties in Sudano's appeal.

As to another respondent, D’Esposito, the Commissioner said that Sudano "attempted to effect service by affixing a copy of the petition to the door at a residence presumed to be that of ... D’Esposito." The Commissioner then noted that "The record indicates that there was one prior attempt to serve respondent D’Esposito several hours earlier on that same day" but said that she could not conclude "that two attempts at service, both within hours of each other on the same day, constitute a diligent effort."

Sudano also attempted to serve D'Esposito by mail. However the Commissioner said that "absent evidence of diligent efforts to effect service upon respondent D’Esposito, service by posting or by mail is ineffectual." The Commissioner explained that while the regulation permits service of a petition on a person "of suitable age and discretion" at the respondent’s residence where the respondent cannot be found, "there is no authority for alternative service by mail or by posting, absent express authorization from the Commissioner."

As the Commissioner did not authorize alternative service by mail, and no personal service was made upon D’Esposito, the Commissioner ruled that Sudano's appeal must be dismissed with respect to D’Esposito for improper service.

Turning to another issue, joining necessary parties, the Commissioner said that were she to accept Sudano's argument that four other teachers less senior than she were serving in positions is her tenure area, the employment rights of these four other teachers would be adversely affected were Sudano to prevail in her appeal.  Under these circumstances, theses other teachers were necessary parties and should have been joined and served as such.

Dismissing Sudano's appeal "for failure to join necessary parties,"  and for failing to properly serve other respondents, the Commissioner never reached the merits of her appeal.

The decision is posted on the Internet at:


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