In rebuttal, the school district contended that Petitioner's application was untimely, must be dismissed for improper service, and the Petitioner's allegations of defamation and slander are outside the jurisdiction of the Commissioner.*
The Commissioner held that the Petitioner's application must be denied as untimely, noting "An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown". The Commissioner rejected Petitioner's argument that such lateness should be excused "due to his lack of knowledge concerning the appeal process." In the words of the Commissioner this was "not a sufficient basis to excuse a delay in commencing an appeal or removal application", citing a number of Decisions of the Commissioner of Education including Application of S.D., 60 Ed Dept Rep, Decision No. 18,009.
The Commissioner also noted Petitioner's application must also be denied for lack of personal service as §275.8(a) of the Commissioner’s Regulations requires that a petition be personally served upon each named respondent. In this instance Petitioner's affidavit of service indicates that service was made upon the district clerk. Petitioner, however, was required to serve the President, the individual whose removal he sought, personally.
Addressing the President's request for a certificate of good faith pursuant to Education Law §3811(1) the Commissioner explained that "[such] certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent's powers or the performance of the respondent's duties as a board member or other official listed in section 3811(1)". As Petitioner's appeal was dismissed on procedural grounds without any findings on the merits, the Commissioner certified that the President was entitled to the requested certification [see Appeal and Application of Petrocelli, 62 Ed Dept Rep, Decision No. 18,223].
* The Commissioner noted that she "lacked jurisdiction to adjudicate Petitioner’s claims of defamation or slander", citing Appeal of Zwanka, 56 Ed Dept Rep, Decision No. 17,051 and Appeal of Murray, 56 id., Decision No. 17,002.
Click HERE to access the Commissioner's decision posted on the Internet.