Appeal of VINCENT J. RIGGI from action of the Board of Education of the City School District of the City of Schenectady regarding a budget vote and application for the removal of Jeff P. Janiszewski as president of the board, and Eric Ely as superintendent of schools.

Decision No. 16,018

(February 6, 2010)

Shari Greenleaf, Esq., attorney for respondents

STEINER, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Schenectady (“board”) regarding the district’s June 16, 2009 budget vote and also seeks the removal of board president Jeff P. Janiszewski (“Janiszewski”) and Superintendent Eric Ely (“Ely”).  The appeal must be dismissed and the removal application denied.

On May 19, 2009, voters defeated the proposed 2009-2010 school district budget.  On June 16, 2009, voters approved an amended proposed budget.  This appeal ensued.

Petitioner contends that the proposed budget passed on June 16, 2009 due to an improper calculation of the contingency budget that would result if the proposed budget were defeated.  Petitioner requests that I invalidate the June 16, 2009 budget vote, require the district to recalculate the contingency budget and submit it to the State Education Department for review and approval.  Petitioner also seeks the removal of respondents Janiszewski and Ely.

Respondents contend that the petition is improper and fails to state a claim.  They also assert that petitioner failed to name and serve the respondents, failed to join necessary parties and failed to allege that the outcome of the vote was affected by any alleged act, omission or error.

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 Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580). 

The appeal must be dismissed for failure to effect proper service on respondents.  The affidavit of service submitted with the petition indicates that the petition was served on Eric Ely by delivering a copy to Shari Greenleaf.  Ms. Greenleaf is the district’s attorney and there is no indication that she was authorized to accept service on behalf of the board, Ely or Janiszewski.  When there is no proof that an individual has been authorized to accept service on behalf of a respondent, service on that individual is improper and the appeal must be dismissed (seeAppeal of Wachala, 49 Ed Dept Rep ___, Decision No. 15,950; Appeal of Peterson, 48 id. 530, Decision No. 15,939; Appeal of DeMarco, 48 id. 252, Decision No. 15,850).  Inasmuch as no respondent has been properly named and served, the appeal must be dismissed.

Similarly, the application for removal must be denied 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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Petitioner failed to name Janiszewski and Ely in either the notice of petition or petition and failed to properly serve them.  Moreover, the notice of petition fails to indicate that removal is sought, as required by §277.1 of the Commissioner’s regulations.  Accordingly, the application for removal must be denied.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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