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Decision No. 14,564

Appeal of ROBERT H. HARRISON from a determination of the Board of Education of the Scarsdale Union Free School District concerning a proposed special district meeting.

Decision No. 14,564

(April 20, 2001)

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a vote by the Board of Education of the Scarsdale Union Free School District ("respondent") refusing to call a special meeting of district voters. The appeal must be dismissed.

Petitioner is a resident of the school district, and purports to bring this appeal "on Behalf of the duly qualified voters of the district," but he has failed to properly commence this matter as a class appeal in accordance with 8 NYCRR "275.2. As a result, the appeal will be treated as the appeal of a single individual.

It appears that on June 15, 2000, at a special district meeting, the district’s voters approved by a wide margin proposals for various new construction and alterations to district facilities. Included in that vote were more than $8 million for construction and improvements to district athletic facilities.

During the preparation stages prior to this vote, respondent decided not to include a swimming pool as part of the construction and improvements. It appears that petitioner and others who wanted a pool addition formed an informal organization called the "Scarsdale Indoor Pool Education Committee (Steering Committee in Formation)." This group presented several petitions to respondent, including one containing 559 signatures filed September 5, 2000, requesting a special district meeting on October 11, 2000, to authorize pool construction at a cost in excess of $1 million in addition to the construction approved by the voters on June 15. On September 11, a second petition was filed containing 174 signatures, requesting a special district meeting on November 1, 2000, for the same purpose. At its meeting of September 11, respondent unanimously voted not to call a special district meeting.

Petitioner then prepared this appeal, including a petition verified October 11, 2000. Petitioner sought interim relief, requesting an order restraining any further construction work until the decision on the appeal. Interim relief was denied on October 25, 2000.

The petition points out many advantages to the district in having its own pool, including the ability of its boys’ and girls’ swimming teams to practice in their own school, rather than traveling to a shared pool some distance away. Petitioner claims that respondent acted in violation of Education Law "2008 in refusing to call the special district meeting to place the question of a pool before the district voters.

Respondent argues that its decision not to include a pool in the construction plans was a curriculum determination, within its exclusive powers and duties pursuant to Education Law "1709(3), and that decisions as to district facilities are within its jurisdiction under "1709(6). It claims that these matters justify its refusal to call a special district meeting pursuant to "2008(2)(a) and (d). Respondent also argues that the appeal is untimely.

The appeal must be dismissed as untimely. Appeals to the Commissioner of Education are governed by 8 NYCRR "275.16, which provides:

Limitation of time for initiation of appeal. An appeal to the commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. The commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown. The reasons for such failure shall be set forth in the petition.

Commencement of an appeal is governed by 8 NYCRR "275.8(a), which provides in pertinent part:

Service of pleadings and supporting papers.

  1. Petition. A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, 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. 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.

To be timely, therefore, this appeal needed to be properly commenced no later than the thirtieth day after September 11, 2000, i.e., October 11, 2000.

Petitioner has filed two affidavits of service. The first affidavit, by Helen T. Harrison, states that service was made by her on October 11, 2000, upon Jacqueline Irwin, president of respondent board, "by delivering to her residence through the front door mail slot after no response to door knock at said time 11:50 p.m. and placed a true copy thereof." The second affidavit, by Evelyn M. Carnicelli, states that service was made on October 12, 2000, upon the district clerk at the district’s administrative office.

According to petitioner’s reply and Jacqueline Irwin’s affidavit, Mrs. Irwin attended a meeting of respondent board on the evening of October 11, 2000, but petitioner was not present. Petitioner’s reply states:

Respondent Board of Education President Jacqueline E. Irwin stated to the petitioner’s question during a telephone conversation on the afternoon of Wednesday, October 11, 2000, that the Scarsdale Board of Education would meet that evening at the Board of Education office at 8:00 P.M. and go into executive session shortly thereafter behind closed doors. She stated in the past that these sessions have lasted to between 11 P.M. and midnight. Petitioner’s verified petition was notarized at 8:45 P.M. on Wednesday, October 11, 2000. Server, Helen T. Harrison, went to the Board of Education office at approximately 11:30 P.M. and no one was in residence at the office. Server then went to President Irwin’s residence at 7 Quaker Centre and after knocking several times with no response, deposited the verified petition through the mail slot in the front door onto the floor inside the residence at 11:50 P.M. on October 11, 2000. Respondent President Irwin states in paragraph 4 of her affidavit in opposition to request for a stay that her daughter heard noise at the front door sometime after midnight. Server Helen T. Harrison has signed a duly sworn affidavit that service was performed at said time of 11:50 P.M., on October 11, 2000 and respondent President Irwin has confirmed that the verified petition was received at her residence.

Mrs. Irwin’s affidavit states:

2. On Wednesday, October 11, 2000, I attended a meeting of the Board of Education in the Scarsdale School District offices. Petitioner was informed by me personally of that meeting but was not present.

3. I returned home from that meeting at approximately 10:30 p.m.

4. My daughter, Pamela, who is 22 years of age and a college student, was studying late at night and she advised me that sometime after midnight on Thursday morning, October 12, 2000, she heard a noise at the front door. Upon investigating, she found that the Notice of Petition and Petition in the within matter were on the floor of the foyer inside the front door.

Assuming the truth of these allegations, it is clear that no valid service on the school district was made on October 11, 2000. The service attempted here is similar to that attempted in Appeal of Ponella (38 Ed Dept Rep 610, Decision No. 14,103), which is dispositive. In that matter, petitioner, seeking to annul the results of a district election, attempted to make service on the school district by serving the district clerk on the thirtieth day after the election was conducted. Petitioner sought to make service on the district clerk, who was not a named respondent, at her home but instead served her seventeen-year-old son, without any prior attempt to serve the clerk herself. With no evidence that petitioner made any diligent effort to serve the clerk personally, I held such service to be ineffective. I dismissed the appeal as untimely, since proper service was not made until the following day. In the appeal now before me, there is no indication of a "diligent search," there is no indication that the petition and notice of petition were delivered to any person, since it was delivered to neither the board president nor her daughter, and clearly the attempted service was not made within the time period of 6 a.m. to 9 p.m., as required by the regulation.

There is no explanation in the petition or otherwise as to why petitioner waited until the last permissible evening to prepare this appeal, and there is no good cause shown for his failure to commence this appeal in a timely manner. Accordingly, there is no legal basis for exercising my discretion to excuse the lateness of this appeal. The appeal must therefore be dismissed.

In view of this disposition, I will not consider the other claims advanced by the parties.

THE APPEAL IS DISMISSED.

END OF FILE