An adminsitrative tribunal may not rely on evidence not in the record in arriving at its decision

An adminsitrative tribunal may not rely on evidence not in the record in arriving at its decision

Kaplan v New York City Tr. Auth., 2018 NY Slip Op 04068, Appellate Division, Third Department

It is "black letter law" that all administrative agencies must render decisions based on the evidence contained in the record pertaining to the particular case before it.

In this case the Workers' Compensation Board [Board] ruled that the employee's death did not arise out of and in the course of his employment* and denied his survivor's [Claimant] application for workers' compensation death benefits.

The Appellate Division, noting that as required of every administrative agency, inistrative agency, the Board must render decisions based on the evidence contained in the record pertaining to the particular case before it said that here the Board relied on medical records "apparently contained in the case file for a separate claim" filed by decedent based on a 2014 fall at work and that one page is the only medical record from 2014 that was included in the current record.

The Board, said the court, relied heavily upon medical records contained in the case file for the 2014 claim although the employer did not request that the Board rely on those 2014 records. Further was the procedure for introducing additional evidence into the administrative appeal that was not before the Workers' Compensation Law Judge was not complied with and the Board's rule provides that, if that procedure is not followed, the Board "will not" consider such new evidence.

The Appellate Division said that Claimant was prejudiced because she was not on notice  until she received the Board decision that the Board would rely on documents from another case file.

The employer contended that 2014 medical reports cannot be objectionable because they accurately reflect the treatment rendered. The court said it could not verify that claim without reviewing those reports.

The Appellate Division also rejected the employer's argument "that no response to the medical records would change the strength of either side's argument"  as constituting "mere speculation" and had those records been properly introduced, either party "may have chosen to submit additional medical records reflecting on decedent's medical treatment from November 2014 until his death in July 2015 had the parties been on notice that this period of treatment would be at issue."

Finally, the court said it could not assume that the Board would have reached the same decision had it not considered the medical records from the earlier case file in view of the fact that "[t]he Board referred to more than one of those medical records, indicated that it considered at least 27 pages and quoted at length from one 2014 document that it found to be 'most telling with respect to the cause of the decedent's death,'" noting that "[i]n one specific finding, the Board stated that any presumption of compensability was rebutted by Brief's medical opinion and the medical evidence in the case file associated with the other claim."

Finding that the Board improperly relied upon documents outside the record, which were not before Court for its review, the Appellate Division reversed the Supreme Court's ruling dismissing Claimant's appeal and remitted the matter to the Board "for further proceedings not inconsistent with this Court's decision."

* To be compensable under the Workers' Compensation Law, an accidental injury must arise both out of and in the course of employment. In situations where there an unwitnessed or unexplained death occurs during the course of employment is involved, the claimant is relieved of the obligation to submit prima facie medical evidence of a causal relationship but that presumption "may be rebutted if substantial evidence demonstrates that the death was not work related."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04068.htm

Status of a spouse named as the primary beneficiary of a life insurance policy or similar instrument in the event the marriage is terminated by divorce

Status of a spouse named as the primary beneficiary of a life insurance policy or similar instrument in the event the marriage is terminated by divorce

Sveen, et el v Melin, United State Supreme Court, 584 U.S. ___ (Decided June 11, 2018)

Mark Sveen purchased a life insurance policy, naming his then spouse, Kaye Melin, as the primary beneficiary and designating his two children from a prior marriage, Ashley and Antone Sveen, as contingent beneficiaries. The Sveen-Melin marriage ended in 2007, but the divorce decree made no mention of the insurance policy and Sveen took no action to revise his beneficiary designations.

After Sveen passed away in 2011, Melin and the Sveen children made competing claims for the insurance proceeds. The Sveen children argued that under Minnesota’s revocation-on-divorce law, their father’s divorce canceled Melin’s designation as the primary beneficiary, leaving them as the lawful beneficiaries. Melin, on the other hand, contended that because the law* did not exist when the policy was purchased and she was therein named as the primary beneficiary, applying the later-enacted law to the policy with respect to her rights as the beneficiary violates the Contracts Clause of the Constitution of the United States.**

The Supreme Court observed that the legal system in the United States has long used default rules to resolve estate litigation in a way that conforms to the decedents’ presumed intent. In terms of the instant action, the law would assume that Mark would want the "default result," but, if he did not, he could have rename Melin as the beneficiary after the divorce took effect.

The Supreme Court held that the retroactive application of Minnesota’s statute does not violate the Contracts Clause, which restricts the power of States to disrupt contractual arrangements, but it does not prohibit all laws affecting pre-existing contracts.

The court noted that two tests are applied in such situations:

1. Does the state law result in as a "substantial impairment of a contractual relationship” by undermining a party’s reasonable expectations, and prevents the party from safeguarding or reinstating his, her or its rights.

2. If such factors show a substantial impairment, the inquiry turns to whether the state law is drawn in an “appropriate” and “reasonable” way to advance “a significant and legitimate public purpose.”

The Legal Department [Legal] of the New York State Teachers' Retirement System [NYSTRS] noted that Chapter 173 of the Laws of 2008, codified in the State's Estates, Powers and Trusts Law §5-1.4, addressed the impact of a divorce on the status of a former spouse's designation as a beneficiary. Legal also noted that NYSTRS "Fact Sheet Chapter 173 of the Laws of 2008", posted on the Internet  at http://www.nystrs.org/NYSTRS/media/PDF/Library/Publications/Ch173FactSheet.pdf, provides an overview of the law and the revocatory effect of divorce on designations or nominations of former spouses.

Legal also noted a recent court decision involving Chapter 173, McCauley v New York State Local Employees' Retirement System, 37 Misc 3d 868. In McCauley the court sustained the revocation of a former spouse as the beneficiary of a death benefit on the authority of Chapter 173.

In McCauley the court noted that the Laws of 2008, Chapter 173, §2 provides that "This act shall take effect immediately and shall apply only where the marriage of a person executing a disposition, appointment, provision or nomination in a governing instrument, as defined in EPTL 5-1.4(f)(5), such section as added by section one of this act, to or for the benefit of a former spouse ends in a divorce or annulment, as defined in EPTL 5-1.4(f)(2), on or after such effective date or, where such a marriage ends prior to such effective date, only where such a disposition, appointment, provision or nomination takes effect only at the death of the person who executes it and such person dies on or after the effective date of this act." (Emphasis supplied by the court.)

Significantly, Supreme Court observed that "While the member designated petitioner as a beneficiary and was divorced from petitioner prior to the enactment of chapter 173, the member passed away following its creation. ('This act shall take effect immediately . . . or, where such a marriage ends prior to such effective date, only where such a disposition, appointment, provision or nomination takes effect only at the death of the person who executes it and such person dies on or after the effective date of this act' [citing the Laws of 2008, Chapter 173, §2].) As the law, by its own terms, applies to all deaths on or after July 7, 2008, petitioner's claim has no merit."

The court also agreed with NYSLERS' contention that it was not required to give notice mandated by the State Administrative Procedure Act and Article IV, §8 of the New York State Constitution, explaining that "In this case there was no need for a 'rule,' since EPTL 5-4.1 prescribes by law that the death benefit in question was revoked upon the dissolution of the member's marriage to petitioner. EPTL 5-4.1 is self-implementing."

Further McCauley's reliance on internal policies and procedures adopted by NYSLERS following the enactment of Chapter 173 was misplaced, as these were "internal memoranda meant to explain how [NYSLERS's] employees should proceed under the newly enacted law." The memoranda, said the court, relied on existing regulations and laws for their stated conclusions and thus are interpretive and fall within the exception provided in the State Administrative Procedure Act.

* Minn. Stat. §524.2–804, subdivision 1 provides that if one spouse has made the other the beneficiary of a life insurance policy or similar asset, their divorce automatically revokes that designation.

** United States Constitution, Article I, §10.

The Sveen decision is posted on the Internet at: 

https://www.supremecourt.gov/opinions/17pdf/16-1432_7j8b.pdf

The McCauley decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2012/2012_22283.htm

Recent disciplinary findings and penalty recommendations of OATH Administrative Law Judges

Recent disciplinary findings and penalty recommendations of OATH Administrative Law Judges

Source: New York City Office of Administrative Trials and Hearings

Employee's "whistleblower defense" rejected by Administrative Law Judge

OATH Index No. 1883/17

A New York City claims examiner raised a Civil Service Law §75-b whistleblower defense to misconduct charges filed against the individual

Administrative Law Judge Noel R. Garcia found the employee did not establish that the sole motivation for petitioner’s charges was to retaliate against the employee for the complaints that he had filed.

Rather, the ALJ found that the persons who investigated and prosecuted the disciplinary matter had an independent and good faith basis to file the charges.

Among Judge Garcia's findings:

1. Petitioner proved respondent took 288 days of unauthorized absence;

2. The individual operated of a personal watercraft in Florida while on leave for a purported injury; and

3. The employee submitted false documents during the hiring process that indicated that He was employed as an Assistant District Attorney during a period when he, in fact, worked as a paralegal.

Penalty recommended by the ALJ: termination of employment.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1883.pdf

Only one of several disciplinary charges filed against the employee sustained by proof submitted by the appointing authority at the disciplinary hearing

OATH Index No. 1958/17

In response to complaints filed against a New York City correction officer, the correction officer was charged with aggravated harassment, violating EEO policies, failing to maintain professional boundaries with a female recruit and suppressing the recruit's report about his conduct.

OATH Administrative Law Judge Kara J. Miller found the evidence inconclusive on most charges because the witnesses for both sides had credibility issues, making it difficult for the appointing authority to sustain its burden of proof.

Judge Miller sustained only the charge that the officer failed to maintain professional boundaries by referring to the complainant as “redbone”.

A five-day suspension without pay was recommended.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1958.pdf

Placing employee on "emergency involuntary leave" as authorized by CSL §72.5  sustained

OATH Index No. 1750/18

An employee challenged his placement on emergency involuntary leave for unfitness to perform his job duties due to mental disability pursuant to §72.5 of the Civil Service Law.

Co-workers credibly testified about the employee’s sudden, unprovoked outbursts, his verbal altercations with women who worked in his unit and his repeated, unsupported claims that the women are sexual predators who physically and verbally harassed him.

A psychiatrist who examined the employee found the employee was unfit because he could not get along with his co-workers.

ALJ Zorgniotti found petitioner proved that the employee was unfit and that petitioner properly placed him on emergency pre-hearing leave.  

The decisions is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1750.pdf

School district resident alleges members of the board of education and school officials and staff of "incompetent, unethical, inappropriate and illegal behaviors."

School district resident alleges members of the board of education and school officials and staff of "incompetent, unethical, inappropriate and illegal behaviors." 

Decisions of the Commissioner of Education, Commissioner's decision 17,393

In view of the variety issues addressed by the Commissioner in her deciding this appeal by a district resident and taxpayer of the Beacon City School District, the decision is set out below in its entirety.

Appeal of MELISSA RUTKOSKE, on behalf of CONCERNED PARENTS OF BEACON CITY SCHOOL DISTRICT from action of the Board of Education of the City School District of the City of Beacon regarding board practices.

Decision No. 17,393

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent^[1], Michael K. Lambert, Esq., of counsel

Elia, Commissioner:

Petitioner Melissa Rutkoske, a district resident and taxpayer, appeals on behalf of Concerned Parents of Beacon City School District (“Concerned Parents”) from various actions taken by the Board of Education of the City School District of the City of Beacon (“respondent board”), its school attorney and superintendent (collectively, “respondents”).

The appeal must be dismissed.

Petitioner Rutkoske asserts that Concerned Parents is a group of parents who support and endorse the instant petition.  Petitioner Rutkoske is an individual taxpayer and community member who resides within respondent board’s district.  In her verification of the petition, petitioner Rutkoske asserts that she is “the Petitioner on behalf of the Concerned Parents of the Beacon City School District.” 

According to petitioner, between the fall of 2014 and a board of education meeting which allegedly occurred on October 14, 2015, respondent board and its officials and staff committed various actions which petitioner characterizes as “incompetent, unethical, inappropriate and illegal behaviors [which] are ongoing and continuous.”  Petitioner cites numerous examples of such conduct; for example, petitioner states that respondent board and respondent’s attorney allowed a board meeting to continue even though the meeting room was over “fire code capacity”; that unethical personal relationships existed between respondent board’s staff, officials and individuals within the district; that personal affairs as well as business were conducted using the district’s email system; that improper gifts were made from a district official to an official of the Beacon Teacher’s Association (“BTA”); that respondent board’s administrative power was used improperly to assist in teacher promotion, teacher transfer, and student placement; and that the school attorney failed to properly investigate or review such alleged improper behaviors. 

Petitioner seeks “[i]nvestigation, audit, and oversight” by the New York State Education Department into the above allegations.  Petitioner further seeks an order “[d]irecting the [b]oard to remove the [superintendent] for cause” and to hire a new law firm to represent the district.

Respondents claim, inter alia, that petitioner’s allegations are without merit and stem from a personal vendetta harbored by petitioner Rutkoske.  Respondents assert that Concerned Parents “is, at best, an unincorporated association” which lacks standing to maintain the instant appeal.  Respondents claim that petitioner inappropriately gained access to district emails attached as exhibits to the petition.  Respondents also argue that petitioner failed to properly identify a respondent or respondents in the caption of the appeal, thus mandating dismissal for failure to join necessary parties.  Respondents further contend that the petition must be dismissed for lack of proper service and as untimely. 

Respondents additionally claim that the officer of the BTA of whom petitioner complains has resigned and, thus, any matters regarding this individual are moot. 

Respondents also assert that petitioner has failed to establish a clear legal right to the relief sought.  Respondents also object to the fact that the petition does not contain petitioner’s name, telephone number, or post office address as required by 8 NYCRR §275.4(a).

As an initial matter, by letter dated January 25, 2016, respondents object to petitioner’s reply, claiming that it contains new material and was not served on their attorney as required by §275.8(b) of the Commissioner’s regulations.  Petitioner’s affidavit of service indicates that the reply was served upon “the Clerk of the Board.”  As respondents note, the Commissioner’s regulations require that “all subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney” (8 NYCRR §275.8[b]).  Accordingly, I have not considered petitioner’s reply (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335).

Concerned Parents lacks standing to bring this appeal.  As respondents note, there is no evidence in the record suggesting that Concerned Parents is an incorporated association.  Petitioner has merely attached to her petition a list of signatures allegedly belonging to district residents who “support” the instant petition.  An unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,282; Appeal of Torres, 46 id. 301, Decision No. 15,515).  Moreover, an individual representative of an unincorporated association has no greater standing to maintain an appeal pursuant to Education Law §310 than the association itself (Appeal of Beilman, 38 Ed Dept Rep 644, Decision No. 14,109; Appeal of Ben-Reuben, et al., 33 id. 299, Decision No. 13,055).  Therefore, neither Concerned Parents nor petitioner Rutkoske, as an individual representative of such unincorporated association, may maintain the instant appeal.

However, although not entirely clear from the petition, to the extent petitioner Rutkoske intends to bring this proceeding on her own behalf as a district resident and taxpayer, she has standing to do so to the extent she is aggrieved.^[2]  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  To the extent petitioner Rutkoske attempts to assert claims on behalf of other parents, however, she lacks standing to do so.  (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874). 

The appeal must be dismissed for failure to join necessary parties.  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 (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption 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 (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  As described herein, petitioner raises claims and seeks relief that, if granted, would adversely affect, at a minimum, the board, the superintendent and the school attorney.  However, she has failed to name any of them in the caption of the appeal. Indeed, the caption in this matter as submitted by petitioner Rutkoske reads as follows:

In the Matter of Concerned Parents of Beacon City School District

requesting New York State Education oversight due to

unethical, illegal and inappropriate conduct of the leadership of

the Beacon City School District.

Moreover, petitioner has not personally served the board, superintendent or school attorney.  Section 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).  The record indicates that the instant appeal was served only upon the district treasurer.  Although petitioner’s affidavit of service indicates that the district treasurer is authorized to accept service on behalf of the district, the treasurer has submitted an affidavit herein whereby she attests that she is not authorized to accept service on behalf of the district. 

On this record, therefore, in light of the conflicting affidavits, I find that the evidence regarding service of the petition on respondent is in equipoise and petitioner has not met her burden of proving that proper service was made on respondent board (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).

Moreover, the record contains no evidence of personal service upon the superintendent and school attorney.  Therefore, because each individual and entity would clearly be affected by a determination in petitioner’s favor, the appeal must be dismissed for failure to join necessary parties.

To the extent petitioner seeks an order directing respondent board to remove the superintendent, such request must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  I take administrative notice of information published on the district’s website indicating that Barbara Walkley is no longer the district’s superintendent.  Therefore, subsequent events have rendered petitioner’s request academic (see Appeal of Budich and MacDonald, 54 Ed Dept Rep, Decision No. 16,774).

Furthermore, petitioner’s request for the removal of the school district’s attorney and the hiring of a new law firm to replace him amounts to a request that I remove the school attorney pursuant to Education Law §306.  It is well established, however, that a school attorney is not an officer of the district and, therefore, not subject to removal from office by the Commissioner of Education (Application of Balen, 40 Ed Dept Rep 250, Decision No. 14,474; Application of Rojek and Spadone, 24 id. 434, Decision No. 11,453; Application of Sterling, 23 id. 294, Decision No. 11,223).  Accordingly, the appeal must be dismissed against the school attorney.

Finally, to the extent petitioner seeks an investigation, an audit, and/or the oversight by the New York State Education Department “into the behaviors of” the board and various individuals, including the superintendent and school attorney, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

^[1]As described more fully below, the original caption submitted by petitioner in this matter identified only the “leadership of the Beacon City School District.”  As a result, respondent’s counsel asserts that, in “an exercise of caution,” the verified answer is submitted on behalf of the “leadership of the Beacon City School District.”

^[2]In light of this determination, references below to “petitioner” refer to petitioner Rutkoske, the sole petitioner with standing to maintain the instant appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17393

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Kelly v New York State Justice Ctr. for The Protection of People With Special Needs, 2018 NY Slip Op 03407, Appellate Division, Third Department

The Petitioner in this action was employed by the Office for People with Developmental Disabilities at the Brooklyn Developmental Disabilities Service Office as a treatment aid.

The New York State Justice Center for The Protection of People With Special Needs [Justice Center] received a report alleging that Petitioner "committed acts of neglect when [she] breached [her] duty towards multiple service recipients by failing to use appropriate and professional language in their presence."

Ultimately Justice Center informed Petitioner that after reviewing the evidence presented, it determined that a preponderance of the evidence supported a finding of abuse or neglect pursuant to Social Services Law §494 and the matter involving Petitioner's alleged "acts of neglect" was referred to Respondent's Administrative Hearings Bureau.

Following the hearing, an Administrative Law Judge [ALJ] concluded that the evidence did not establish that Petitioner had committed an act of neglect. Justice Center, however, rejected the ALJ's recommendation, finding that, "by a preponderance of the evidence," Petitioner had committed neglect. Petitioner then commenced an CPLR Article 78 proceeding challenging Justice Center's determination, which was transferred to the Appellate Division.

Petitioner argued that the Justice Center was required to adopt the ALJ's recommended decision.* The Appellate Division held that Petitioner's argument was "without merit."  It also disagreed with Petitioner's contention that Justice Center's regulation 14 NYCRR 700.13 conflicts with Social Services Law §494(1)(b), noting that the statute does not require that the ALJ's decision be final and binding upon Justice Center. Instead, the statute merely states that, in the event that a petition is not sustained by the ALJ, such finding must be reflected upon an amended record.

Addressing the authority of Justice Center's "Chief of Staff" to render a final determination, the Appellate Division ruled that "the death of Justice Center's Executive Director did not diminish the Chief of Staff's authority to act as a designee of the Executive Director and, as such designee, render a final determination."

Public Officers Law §9, in pertinent part, provides ... Deputies, their appointment, number and duties. Every deputy ... in case of [the officer's] absence from the office or  his [or her] inability to act, or in case of a vacancy in the office, and if he [or she] shall fail to make such designation, the deputy ... shall so act. If a vacancy in a public office shall be caused by the death of the incumbent, the deputies shall, unless otherwise provided by law, continue to hold office until the vacancy shall have been filled in  accordance with law.

* With respect to court upholds appointing authority's rejection of hearing officer findings, In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757, the Appellate Division held that where the record contained substantial evidence affording a rational basis for the appointing authority determination, the appointing authority's determination will be sustained. See, also, Delgrande v Greenville Fire Dist., 126 AD3d 968 and Perfetto v Erie Co. Water Auth., 298 A.D.2d 932.  [The appointing authority may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence.] Further, in Weill v New York City Dept. of Educ., 61 AD3d 407, the decision notes that the administrative body, rather than its attorney, must indicate the basis for its administrative action or decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03407.htm

Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Appeal of J.M from action of the Board of Education of the Croton-Harmon Union Free School District, Decisions of the Commissioner of Education, Decision No. 17,402

In some instances an appeal to the Commissioner of Education is dismissed for failure to comply with certain procedural requirements. The appeal of J.M. illustrates one of the reasons why an appeal is rejected on technical grounds, in this instance for lack of proper service of the appeal on the respondent parties.

Croton-Harmon Union Free School District, in its reply to J.M.'s appeal, contended that the appeal must be dismissed for lack of proper service. The Commissioner agreed, explaining that the Commissioner’s regulation requires that the petition be personally served upon each named respondent as set out in 8 NYCRR §275.8(a).*

In the event a school district is named as a respondent, 8 NYCRR §275.8(a) requires that 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."

J.M.'s affidavit of service indicated that the appeal was served upon the secretary to the superintendent.  Although the affidavit of service attests that the secretary was “duly authorized to accept service,” Croton-Harmon said that the secretary has not been designated by it to accept service on behalf of the school district or the superintendent. 

The Commissioner, noting that J.M. did not submitted a reply or otherwise responded to the Croton-Harmon’s "motion to dismiss" J.M.'s appeal, said that in the event there is no proof that an individual is authorized to accept service on behalf of respondent, "service is improper and the appeal must be dismissed."

The Commissioner observed that considering the record before her, "I cannot conclude that [J.M.] properly served a copy of the notice of petition and petition on [Croton-Harmon]" and, accordingly, J.M.'s appeal must be dismissed.

Another common procedural defect resulting in the dismissal of the appeal is the petitioner's failure to serve a "necessary party" as required by 8 NYCRR 277.1(b).**

A "necessary party" is a  party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner and must be joined as such. Further, 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.

Further, it is the petitioner's burden to properly serve the petition and the service of the petition and the petitioner must submit evidence that that has been done. In the absence of such evidence, the Commissioner has ruled that the appeal must be dismissed "for improper service."

* 8 NYCRR 275.8, service of pleadings and supporting papers, provides as follows:

(a) Petition. A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers, except a memorandum of law (unless the appeal is a charter school location/co-location appeal pursuant to section 276.11 of this Title, in which case the memorandum of law shall be served with the petition) or an affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent's residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner. If a school district is named as a party respondent, service upon such 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 of such school district, 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. If a board of cooperative educational services is named as a party respondent, service upon such board shall be made personally by delivering a copy of the petition to the district superintendent, to a person in the office of the district superintendent who has been designated by the board to accept service, or to any member of the board of cooperative educational services. Pleadings may be served by any person not a party to the appeal over the age of 18 years. If the last day for service of the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.

** In Decisions of the Commissioner of Education, Decision #16,853 the Commissioner noted that although a necessary party had not been named in "the original petition," her Office of Counsel had advised the all the parties that the petitioner's earlier request to join an individual as a necessary party was granted. Consequently, said the Commissioner, “in this instance, I find the failure to include that [individual] in the original petition is not a basis for dismissal of this appeal."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17402