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Decision No. 16,506

 

 Appeal of A.W. from action of the Board of Education of the Schoharie Central School District regarding student discipline.

Decision No. 16,506

(July 19, 2013)

Guercio & Guercio, LLP, attorneys for respondent Board of Education of the Schoharie Central School District,

Kathy A. Ahearn, Esq., of counsel Michele Handzel, Esq., attorney for respondent Board of Cooperative Educational Services for Albany,

Schoharie, Schenectady and Saratoga Counties

KING, JR., Commissioner.--Petitioner appeals his suspension from an adult education program of the Board of Cooperative Educational Services for Albany, Schoharie, Schenectady and Saratoga Counties (“Capital Region BOCES” or “BOCES”). The appeal must be dismissed.

The Capital Region BOCES serves adults in secondary programs in their Career and Technical Education (“CTE”)Centers in Albany and Schoharie, New York. In the fall of 2012, petitioner was enrolled as an adult in Capital Region BOCES’ Power Sports Equipment Technician Program (“CTE program”) at its Schoharie, New York location. In December 2012, petitioner was allegedly involved in an inappropriate conversation relative to a female student in his class. After an investigation by the BOCES principal, petitioner was permanently removed from the CTE Program in accordance with BOCES’ policy 5030 which prohibits students from breaching BOCES’ Code of Conduct. By letter dated January 4, 2013 and addressed to Capital Region BOCES’ District Superintendent, petitioner challenges his permanent suspension from the BOCESCTE program. Prior to receiving a response from the District Superintendent, petitioner commenced this appeal. Petitioner’s request for interim relief was denied on February 20, 2013.

Petitioner argues that his permanent suspension from the BOCES CTE program was improper and in violation of Education Law §3214.

Capital Region BOCES asserts that its determination to permanently suspend petitioner from its CTE program was appropriate and in accordance with its student discipline policies and procedures. BOCES further contends that the appeal must be dismissed for failure to join necessary parties and for improper service.

The appeal must be dismissed on procedural grounds. 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).

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 (8NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530,Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

In this appeal, petitioner challenges his permanent suspension from the BOCES CTE program. However, petitioner fails to name the BOCES as a respondent in the caption of his petition and instead names respondent board. Furthermore, petitioner’s affidavit of service indicates that the petition was served only upon the BOCES District Superintendent, and not upon respondent board. Therefore, I find that the appeal must be dismissed for failure to join necessary parties and for improper service.

Because I am constrained to dismiss the appeal on procedural grounds, I need not consider the parties ‘remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE