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Decision No. 14,517

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Application of SAMUEL BURNETT for removal of Henry Bacon, Rodney Bordeaux, Denise Collins, LaFlorence Grant, Derrick Hardy, Phyllis Henry and Edna Newton as members of the Board of Education of the Wyandanch Union Free School District.

Decision No. 14,517

(December 21, 2000)

VanNostrand & Martin, Esqs., attorneys for respondents, David S. Desmond, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Henry Bacon, Rodney Bordeaux, Denise Collins, LaFlorence Grant, Derrick Hardy, Phyllis Henry and Edna Newton as members of the Board of Education of the Wyandanch Union Free School District based upon allegations relating to legal advice received generally by the board and specifically in connection with the employment of an interim superintendent of schools. The application must be denied.

Petitioner alleges that the attorney for the Wyandanch Board of Education failed to provide the board adequate legal advice in connection with the board's employment of an interim superintendent of schools. Petitioner specifically claims that the board's attorney failed to immediately seek a waiver from the State Education Department to permit one of the candidates for interim superintendent of schools, Mr. Leon Van Dyke, to serve in that capacity despite the candidate's lack of certification. As a result, Mr. Van Dyke was employed as interim superintendent and subsequently, after only 25 days, terminated for lack of appropriate certification. Petitioner claims that, due to its attorney's alleged incompetence, the board wasted time and district funds. Petitioner asserts that, therefore, removal of the individual board members is warranted.

Respondents assert that the appeal must be dismissed as untimely. Respondents also claim that they have not been personally served with the petition herein and that, therefore, the appeal must be dismissed for lack of personal jurisdiction over them. Finally, respondents contend that petitioner has failed to establish any basis for their removal from office.

Petitioner's application must be dismissed for lack of personal jurisdiction. An appeal to the Commissioner must be initiated by personal service of the petition upon each named respondent, in accordance with 8 NYCRR "275.8(a) of the Commissioner's regulations. That section provides in pertinent part:

A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers… shall be personally served upon each named respondent, or, if he cannot be found upon diligent search, by delivering and leaving the same at his 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. (emphasis added)

The record shows that petitioner attempted to serve the individual respondents by delivering a copy of the petition to the superintendent of schools and to the attorney for the school district. No respondent was served personally as required by 8 NYCRR "275.8(a). Therefore, the application for respondents' removal as members of the Wyandanch board of education must be dismissed as to each of them (Appeal of Lynn I., 39 Ed Dept Rep 76, Decision No. 14,179).

The application must also be dismissed on the merits. Education Law "306 allows the Commissioner of Education to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer where such person has been guilty of any willful violation or neglect of duty under the Education Law, or any other act pertaining to common schools or other educational institution participating in State funds, or willfully disobeying any decision, order, rule or regulation of the Regents or the Commissioner of Education. The petition before me is entirely devoid of any allegation that any respondent was guilty of willful violation of law or neglect of duty or that any respondent willfully disobeyed any decision, order, rule or regulation of the Regents or Commissioner of Education. Instead, all of petitioner's claims address the competence of the school board's attorney and the adequacy of legal advice he provided upon which respondents relied. Having neither alleged nor proven any violation set forth in Education Law "306, there is no basis for removal of respondent board members.

THE APPLICATION IS DENIED.

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