September 2, 2021

An Education Law §306 appeal to the Commissioner of Education will be dismissed if not properly served

The Petitioner in this appeal to the Commissioner of Education sought the removal of a member of the Board of Education [Member] alleging the Member uttered an obscenity in response to comments made by Petitioner.  

Petitioner's complainant alleged that Member directed “[u]nprofessional, rude, and vulgar language” toward her in response to her questions.  As redress, Petitioner asked the Commissioner [1] to remove the Member from the board; [2] bar the Member from running and serving on any school board in the future; and [3] give Petitioner a written apology for his unprofessional behavior.

Member, conceding that he used an obscenity but denied making the specific remark attributed to him by Petitioner, contended that Petitioner's appeal must be dismissed for a number of reasons including "improper service." 

The Commissioner agree that the appeal must be dismissed "for lack of personal service" as §275.8 (a) of the Commissioner’s regulations requires that "the petition be personally served upon each named respondent." Noting that Petitioner’s affidavit of service indicates that the petition was sent by U.S.mail and there was no evidence that Petitioner made any other attempt at effectuating service. Significantly, the Commissioner pointed out that "service by U.S.mail" does not constitute valid service of a petition pursuant to Education Law §306.

The Commissioner then noted that even assuming that Petitioner effected valid service on the district clerk, this would not constitute service on Member.  Citing 8 NYCRR 275.8[a], the Commissioner said that although a district clerk is authorized to accept service on behalf of the board of education, "the district clerk generally cannot do so for individual respondents."

Observing that Petitioner's application must be denied on procedural grounds, the Commissioner opined that Member’s conduct "was entirely inappropriate, particularly for a member of a board of education" and admonish Member “to comport himself in the future in a manner befitting a holder of public office.”

Click HEREto access the full text of the Commissioner's decision.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.