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February 13, 2023

Improper service of an appeal to the Commissioner of Education

The Commissioner dismissed this Education §310 appeal for improper service, noting that §275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  "If a school district is named as a respondent, service upon the school district shall 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 (8 NYCRR 275.8 [a], Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). 

As here relevant, the petition was sent by U.S. mail to respondent’s district clerk.  The Commissioner observed that service by U.S. mail "does not constitute valid service of a petition pursuant to Education Law §310" and, therefore, "the appeal must be dismissed."*

The Commissioner then opined that "Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief." The Commissioner also noted that "As [the school district correctly noted], there is no requirement that a board of education conduct a nationwide search for a superintendent."

Petitioner, said the Commissioner, has otherwise failed to demonstrate that the school district acted in an arbitrary or capricious manner in appointing its new superintendent. (see Appeal of S.E., 51 Ed Dept Rep, Decision No. 16,352; Appeal of J.P., et al., 42 id. 226, Decision No. 14,832).

* The Petitioner’s affidavit of service contained the following notation:  “Affidavit of service by mail [s]ince the school district is on Spring Break this week.”  This, said the Commissioner, "does not establish that district offices were closed or that [Petitioner] was otherwise prevented from effectuating personal service."

Click HERE top access the Commissioner's decision.

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