Appeal of MICHAEL NELSON, on behalf of his son WRILEY and the TAXPAYERS OF THE CHERRY VALLEY – SPRINGFIELD CENTRAL SCHOOL DISTRICT, regarding a district policy and application for the removal of the Board of Education of the Cherry Valley - Springfield Central School District.

Decision No. 16,845

(November 2, 2015)

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, Amy J. Lucenti, Esq. of counsel

ELIA, Commissioner.--Petitioner appeals from action of the Board of Education of the Cherry Valley-Springfield Central School District (“respondent” or “board”) in relation to a district policy and seeks the removal of the members of the board.  The appeal must be dismissed and the application denied.

Petitioner alleges that respondent permitted the district’s superintendent to use a district vehicle for personal use in violation of district policy.  Petitioner maintains that respondent failed to hold the superintendent accountable for his alleged violation of district policy and failed to properly investigate the matter.  Petitioner requests that I compel respondent to follow its own policies, that I order respondent to reimburse taxpayers for the reasonable expense resulting from the superintendent’s alleged improper use of a district vehicle and that I investigate the unauthorized use of district property.  Finally, petitioner requests that I order the removal of members of the board.

Respondent contends that petitioner fails to state a claim upon which relief may be granted and to join necessary parties.  Respondent also contends that petitioner failed to properly serve the petition or to name individual board members as respondents.  Respondent alleges that the petition fails to comply with 8 NYCRR §277.  Finally, respondent contends that I lack the authority to order financial reimbursement to taxpayers or to order an investigation.

Initially, I must address several procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

To the extent petitioner seeks to bring this proceeding on behalf of other taxpayers, I note that an appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Petitioner’s pleadings are entirely devoid of any allegations addressing these criteria.  Therefore, to the extent petitioner seeks to maintain the appeal on behalf of other taxpayers, class status is denied.

The appeal must be dismissed and the application denied for failure to join necessary parties.  First, respondent asserts that the superintendent is a necessary party to the appeal and that petitioner’s failure to join him warrants dismissal.  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 (8 NYCRR §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).

The relief sought by petitioner in the appeal includes an investigation of the superintendent for “unauthorized uses of the District’s property.”  Because a determination in favor of petitioner would therefore adversely affect the superintendent, the latter is a necessary party to petitioner’s appeal.  However, the superintendent was not named in the caption of this proceeding and, while the petition was served upon the district clerk, petitioner failed to submit an affidavit of service indicating that the superintendent was personally served.  Accordingly,  petitioner’s failure to join the superintendent as a respondent warrants dismissal of the appeal.

The application for removal must also be denied as petitioner failed to serve the individual board members with the notice of petition and petition, and therefore failed to join them as necessary parties.  The record indicates that petitioner served only the district, by personally serving its clerk.  There is no indication that any individual board members were served with a copy of the notice of petition and petition.  Accordingly, petitioner’s removal application must be denied (see Appeal of Emerling, 51 Ed Dept Rep, Decision No. 16,352).

In addition, petitioner’s application for removal must also be denied because the notice of petition is defective.  Section 277.1(b) of the Commissioner’s regulations 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, petitioner 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 Emerling, 51 Ed Dept Rep, Decision No. 16,352; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

The appeal must also be dismissed with respect to petitioner’s demand that the Commissioner investigate the alleged unauthorized use of district property.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

Finally, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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