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Decision No. 15,594

Appeal of SHARON HENLEY, on behalf of her son JORDAN, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15,594

(June 13, 2007)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her son, Jordan, is not a district resident.  The appeal must be dismissed.

Petitioner enrolled Jordan in respondent’s schools in the fall of 2005.  In February 2006, the district’s administration began an investigation of petitioner’s residency, and on March 1, 2006, petitioner attended a residency conference.  By letter dated June 28, 2006, respondent’s administrative review officer notified petitioner of her findings that Jordan was not a district resident and that, as of July 21, 2006, Jordan was ineligible to attend school in the district because the parental residence was in Queens, New York.

In mid-September 2006, petitioner attempted to re-enroll Jordan in respondent’s schools.  By letter dated September 15, 2006, respondent’s administrative assistant to the superintendent notified petitioner that Jordan was not entitled to attend the district’s schools because he was not a resident.  On September 19, 2006, petitioner attended a residency conference.  By letter dated September 28, 2006, and by a formal report dated October 13, 2006, respondent’s administrative review officer notified petitioner of her findings that Jordan was ineligible to attend school in the district because the parental residence was in Queens, New York.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 1, 2007.

Petitioner contends that she and her son live in the district.  Respondent contends that the petition is untimely and was improperly served.  Respondent further contends that petitioner and her children reside in Queens.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Respondent’s final determination in this matter was issued on October 13, 2006.  However, petitioner did not attempt to commence this appeal until December 6, 2006.  Deficiencies in petitioner’s pleadings caused my Office of Counsel to reject their filing.  Petitioner re-served a petition on January 22, 2007[1] more than 30 days from the district’s final determination.  Petitioner offers no legal excuse for her delay.  Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed for lack of personal service upon respondent.  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]).

Respondent claims that a sealed envelope addressed to Frederick Raulli, Administrative Assistant to the Superintendent, was delivered to a receptionist at the district’s central administrative offices.  The receptionist delivered the sealed envelope to Mr. Raulli’s secretary, who upon determining its contents, delivered it to the district clerk.  Petitioner’s affidavit of service supports respondent’s claims as it states that service took place upon “F. Raulli’s Office.”

Since the petition was not personally served on the district clerk, a member of the board of education, the superintendent, or to a superintendent’s designee, there was no valid service of process and the Commissioner does not have jurisdiction over this appeal (Appeal of Atwal, 43 Ed Dept Rep 406, Decision No. 15,033; Appeal of a Student with a Disability, 43 id. 361, Decision No. 15,018).

In light of this disposition, I need not address respondent’s remaining contentions.

While the appeal must be dismissed, petitioner has the right to apply to the district for admission on her son’s behalf if circumstances have changed (Appeal of Peacock, 46 Ed Dept Rep 120, Decision No. 15,460).

THE APPEAL IS DISMISSED.

END OF FILE



[1] Respondent disputes petitioner’s claim that delivery of the petition occurred on January 22, 2007 and instead argues that it took place on January 24, 2007.  However, I need not decide this issue as either service date would be untimely.