Petitioner's appeal from a Board of Education's seniority determination for the purposes of layoff dismissed for failure to make "proper service" on all the parties
Decisions of the Commissioner of Education, Decision No. 17,234
The Commissioner of Education dismissed a teacher's challenge to a Board of Education's decision concerning her seniority for the purposes of a layoff because the educator failed to comply with the service requirements set out in the Commissioner's Regulations on all the parties involved.
The Commissioner's regulation require that the petition be personally served upon each named respondent.
1. If a school district is named as a respondent, service upon the school district must 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."
2. 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. Joinder as a necessary party requires that an individual be clearly named as a necessary party by name 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.
In this appeal the Commissioner found that the record indicated that the appellant [Petitioner] did not personally serve a necessary party [Respondent]. Although Petitioner attempted to effect service upon Respondent by serving papers upon a “person of suitable age and discretion,” the affidavit of service failed to demonstrate that Petitioner made any “diligent search” for Respondent before resorting to this method of "substitute service."
The Commissioner noted that the affidavit of service did not detail any prior attempts regarding service but Petitioner merely stated in her reply that two trips to Respondent's home were made and then asserts, upon information and belief, that the process server was informed on the first attempt that Respondent was on vacation.
Petitioner then asserted that a second attempt was made to see if Respondent had returned from vacation and because the statute of limitations was near, service upon an individual of suitable age and discretion should be deemed sufficient for the purpose of "proper service" upon Respondent.
The Commissioner ruled that Petitioner failed to prove that Petitioner's two attempts at service constitute a diligent effort to find Respondent "where [Petitioner] has not provided any evidence to support her assertion in her reply, made upon information and belief, that the process server was told that [Respondent] was on vacation and there is no evidence in the record concerning how much time elapsed between the first and second attempts."
In the words of the Commissioner, "Absent evidence of diligent efforts to effect service upon [Respondent], service upon an individual of suitable age and discretion is ineffectual and the appeal must be dismissed as to [Respondent] for improper service."
The significance of this is that as the rights of Respondent could be adversely affected should Petitioner to prevail in this appeal and thus "Respondent is a necessary party and should have been joined and served as such."
The Commissioner dismissed Petitioner's appeal for "failure to join a necessary party."
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume57/d17234
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