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Decision No. 17,149

Application of SAMUEL L. RADFORD, III, KEVIN LAFFERTY, PATRICIA A. ELLIOTT-PATTON, and FRANKLIN REDD, JR., individually and on behalf of their minor children, for the removal of Barbara Seals-Nevergold, President of the Board of Education of the City School District of the City of Buffalo, Carl Paladino, Theresa Harris-Tigg, Sharon Belton-Cottman, Patricia Pierce, Lawrence Quinn, Jennifer Mecozzi, Paulette Woods, and Hope Jay, as members of the Board, and Kriner Cash, as superintendent.

Decision No. 17,149

(August 17, 2017)

Bond Schoeneck & King, PLLC, attorneys for respondent board members and Kriner Cash, Bethany A. Centrone, Esq., of counsel

Lippes Mathias Wexler Friedman LLP, attorneys for respondent Carl Paladino, Dennis C. Vacco, Esq., of counsel

ELIA, Commissioner.--Petitioners seek the removal of all nine members of the Board of Education of the City School District of the City of Buffalo (collectively, “respondent board”) as well as the district’s superintendent, Kriner Cash.  The application must be denied.

Petitioners are the parents and guardians of students in the City School District of the City of Buffalo.  Petitioners contend that respondent Paladino published comments in a December 23, 2016 edition of Artvoice magazine which disrupted district operations and caused “psychological and emotional harm” to district students.  Petitioners further argue that respondent board and respondent Cash’s failure to “act to eliminate or address the extremely” harmful conduct constitutes cause for removal pursuant to Education Law §306.  Petitioners seek an order removing respondents from office pursuant to Education Law §§306 and 2559 as well as appointment of a receiver “until new elections are held in 2018.”  Petitioners’ request for interim relief was denied on February 3, 2017.

Respondent board and respondent Cash admit that respondent Paladino published the comments, but deny that respondent board has caused any harm to district students and families.  Respondents contend, among other defenses, that the application must be denied for lack of personal service.

Respondent Paladino[1] denies the allegations in the petition and interposes several affirmative defenses.  Respondent contends, among other defenses, that the application must be denied for lack of personal service.  Respondent Paladino also requests that I grant him a certificate of good faith pursuant to Education Law §3811(1).

The application must be denied for lack of personal service.  Commissioner’s regulation §275.8, which is made applicable to removal proceedings by Commissioner’s regulation §277.1, provides in pertinent part:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law … or an affidavit in support of a reply, shall be personally served 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.

Here, petitioners submit affidavits of personal service for each respondent which indicate that the application and supporting documents were delivered to the “Office of General Counsel” and served upon “the Clerk of the Board of Education.”  In an affidavit, the district’s general counsel avers that, on January 20, 2017, an individual arrived at the Office of General Counsel and attempted to serve the instant application.  The district’s general counsel, after reviewing the application, informed the individual that he could not accept service for individual board members or the superintendent.  The district’s general counsel returned the copies of the application to the individual and walked away.  Later, while walking through the office’s reception area, the district’s general counsel noticed that 11 copies of the instant application had been left on a desk.  Petitioners did not submit a reply in this matter or otherwise respond to these assertions.

While §275.8(a) of the Commissioner’s regulations permits personal service on a district clerk where a school district is named as a respondent, an application for removal of board members or other school officers must be personally served upon each individual board member or other school officer whose removal is sought and service upon the district clerk does not confer personal jurisdiction over individual respondents, who are necessary parties (Application of Johnston, et al., 56 Ed Dept Rep, Decision No. 17,055; Application of Murray, 56 id., Decision No. 17,002; Appeal of Nelson, 55 id., Decision No. 16,845; Appeal of Emerling, 51 id., Decision No. 16,352). Petitioners have neither alleged nor proven that the individual respondents have authorized either the district clerk or the district’s general counsel to accept service on their behalf.  Each individual respondent other than respondent Paladino has submitted an affidavit attesting that they have not authorized any employee of the board of education, or any other person, to accept service on their behalf.

On this record, petitioners failed to effectuate personal service of the application upon the individuals of whom they seek removal and, therefore, did not secure jurisdiction over any of the respondents.  Accordingly, the application must be denied for failure to join the individual respondents as necessary parties (Application of Murray, 56 Ed Dept Rep, Decision No. 17,002; Appeal of Nelson, 55 id., Decision No. 16,845; Appeal of Emerling, 51 id., Decision No. 16,352).

One administrative matter remains.  Respondent Paladino requests that I grant him a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify him for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a board member. It is appropriate to issue such certification unless it is established on the record that the requesting board member or trustee acted in bad faith (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Application of Mazile, 45 id. 378, Decision No. 15,356).  Here, because the application has been denied on procedural grounds, there has been no finding that respondent Paladino acted in bad faith with respect to the allegations in the instant application.  Thus, I hereby certify solely for the discrete purpose of Education Law §3811(1) that respondent Paladino is entitled to receive the requested certificate (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Application of Wallace, 52 id., Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265) with the admonition that such certificate is in no way to be construed as approval of the conduct alleged herein.

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

THE APPLICATION IS DENIED.

END OF FILE

 

 

[1] Respondent Paladino was recently removed as member of the Board of Education of the City School District of the City of Buffalo based upon his disclosure of confidential information which he obtained in the course of his official duties (Application of Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147).