August 27, 2022

Application to remove an individual serving as "trustee and president" of the school board

An applicant sought to have the Commissioner of Education remove the President of the school board for a number of reasons including "consistently arguing with parents at almost every [board] meeting” and for "abstaining from a school board vote."

Commissioner Rosa dismissed the appeal for two procedural reasons. 

First Dr. Rosa ruled that the application must be dismissed for improper service.

§275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. In this instance the Commissioner found that the record indicates that Petitioner failed to properly serve the petition upon the President, who is the sole respondent in the application but left the petition with a “receptionist” at the school board’s district office whom the Petitioner knew to be “responsible for receiving district mail.” §275.8(a), however, of the Commissioner’s regulations applicable to removal proceedings pursuant to Commissioner’s regulation §277.1, requires that the petition be personally served upon each named respondent. 

The President contended that she was never personally served with a copy of the petition and Petitioner did not challenge this contention.  Accordingly the Commissioner ruled that the petition "must be dismissed for improper service," citing Decision of the Commissioner of Education No. 17,391. 

In addition Dr. Rosa held that the application must be dismissed for lack of the specialized notice required by §277.1 (b) of the Commissioner’s regulations. This regulation, said the Commissioner, sets out "the specific notice required for removal applications pursuant to Education Law §306, which is distinct from the notice required under §275.11(a) for appeals pursuant to Education Law §310."

The Commissioner explained that the notice of petition "secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application." Accordingly, the Commissioner held that such situations "a removal application that does not include the specific notice required by 8 NYCRR 277.1(b) is fatally defective and must be denied."

Click HERE to access the 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.