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Decision No. 16,335

Appeal of KEVIN REIS and JOSEPH R. ARGUS from action of the Board of Education of the Taconic Hills Central School District regarding conflicts of interest and application for the removal of Donald McComb, Robert McComb and George Lagonia, Jr. as board members and the removal of Donald McComb and George Lagonia, Jr. as varsity coaches.

Decision No. 16,335

(March 9, 2012)

Richard E. Casagrande, Esq., New York State United Teachers, attorneys for petitioners, Susan W. Fuller, Esq., of counsel

Girvin & Ferlazzo, PC, attorneys for respondents, Kristine Amodeo Lanchantin, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal from action of the Board of Education of the Taconic Hills Central School District (“board”), Donald McComb, Robert McComb and George Lagonia, Jr. (collectively “individual respondents,” and together with the board “respondents”) regarding board member conflicts of interest and coaching appointments.  Petitioners also seek removal of the individual respondents.  The appeal must be dismissed and the application denied.

Petitioners are employees of the district.  Petitioner Argus is also a district resident.  The record indicates that respondent Robert McComb has been a member of the board since 2007 and that respondents Lagonia and Donald McComb (brother of respondent Robert McComb) have been board members since 2008.  At the board’s January 26, 2011 meeting, Lagonia and Donald McComb were appointed to varsity coaching positions, which they accepted as volunteers.  This appeal and application ensued.

Petitioners allege that Education Law §2103(3) was violated when brothers Robert and Donald McComb were permitted to serve simultaneously as members of the board.  Petitioners also allege that, in accordance with Education Law §2103(4), Donald McComb and George Lagonia are ineligible to simultaneously hold positions as members of the board and as coaches for the district and that by doing so they violated General Municipal Law §801.  Petitioners request that I remove the individual respondents from their positions as members of the board and that I remove Donald McComb and George Lagonia from their coaching positions.

The board contends that the appeal and application must be dismissed for failure to state a cause of action and for failure to comply with the notice requirements of 8 NYCRR §277.1(b).  The board maintains that the petition and application were not properly served.  Finally, the board alleges that petitioner Reis lacks standing. 

Respondents[1] object to petitioners’ reply and memorandum of law which were not served on its attorneys as required by §275.8(b) of the Commissioner’s regulations.  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 petitioners’ reply or memorandum of law.

To the extent petitioners seek the removal of the individual respondents from the board, the appeal must be dismissed for failure to comply with §277.1 of the Commissioner’s regulations.  Section 277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office.  In this case, petitioners failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent (Application of Carrion, 50 Ed Dept Rep, Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253).

The appeal and application must also be dismissed for improper service upon the individual respondents and, as a consequence, for failure to join them as necessary parties. Section 275.8(a) of the Commissioner’s regulations requires that an appeal be commenced by personal service of a copy of the petition 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.”  The record indicates that petitioners first attempted to serve Donald McComb and Robert McComb by affixing the notice and petition to their front doors and that they attempted to serve George Lagonia by delivering the notice and petition to the postmaster.  Petitioners then attempted to serve the individual respondents by personally serving the superintendent.

There is no authority for alternative service by mail or by posting absent express authorization from the Commissioner (Appeal of Johnson, 45 Ed Dept Rep 469, Decision No. 15,384; Application of Balen, 40 id. 250, Decision No. 14,474).  Since my Office of Counsel did not authorize alternative service, and no personal service was made on the individual respondents, petitioners failed to obtain jurisdiction over them for this reason as well.

With respect to petitioners’ remaining claims against the board, the record indicates that petitioners personally served the superintendent, which effects service on the board pursuant to §275.8(a) of the Commissioner’s regulations.  However, because a determination in favor of petitioners on such claims would necessarily impact Donald McComb, Robert McComb and George Lagonia, such claims must be dismissed for failure to join those individuals as 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Although I am constrained to dismiss the appeal and deny the application on procedural grounds, one administrative matter remains.  Respondents have requested that I issue the individual respondents a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify the individual respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties as board members.  It is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith (Application of Schenk, 47 Ed Dept Rep 375, Decision No. 15,729; Application of Lilly, 47 id. 307, Decision No. 15,705; Application of Berman, 46 id. 378, Decision No. 15,537).  In view of the fact that there has been no finding that the individual respondents acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that they are entitled to receive the requested certificate.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE.

[1] I note that the individual respondents did not file an answer in this matter