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Decision No. 17,521

Appeal of DOUGLAS S. WHITE from a determination rendered by a hearing officer pursuant to Education Law §3020-a concerning charges brought against him by the Board of Education of the Roosevelt Union Free School District.

Decision No. 17,521

(October 16, 2018)

Guercio & Guercio LLP, attorneys for respondent, Anthony J. Fasano, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from a determination rendered by a hearing officer pursuant to Education Law §3020-a (“§3020-a”) concerning charges brought against him by the Board of Education of the Roosevelt Union Free School District (“respondent”).  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts giving rise to the instant dispute is unnecessary.  Briefly, respondent preferred charges against petitioner pursuant to §3020-a on February 16, 2012.  Petitioner was accused of two charges which encompassed a total of seven specifications.  In a decision dated June 10, 2013, a hearing officer found petitioner guilty of all charges and specifications, except for charge 1, specification 2, and suspended him without pay for 42 school days.  Petitioner sought judicial review of this decision. 

On February 22, 2017, the Appellate Division vacated portions of the hearing officer’s findings and remanded the matter to the hearing officer for a determination on penalty (White v. Roosevelt Union Free Sch. Dist. Bd. of Educ., 147 AD3d 1071).  In a decision dated December 5, 2017, the hearing officer reduced petitioner’s penalty in light of the Appellate Division’s decision.  This appeal ensued.

Petitioner argues that the hearing officer erred by imposing a penalty upon him in the December 5, 2017 decision on remand.  Petitioner also complains of actions taken by the principal of respondent’s high school against him on unspecified dates.  Petitioner further asserts that, following the hearing officer’s decision on remand, he was “placed back into the classroom to teach again without any support or remediation.”  Petitioner additionally contends that the penalty imposed by the December 5, 2017 hearing officer decision has prevented him from obtaining malpractice insurance which, in turn, prevents him from working with a service provider.  Petitioner alleges that he has filed a lawsuit alleging, inter alia, that respondent has engaged in racial discrimination and illegal retaliation pursuant to Title VII of the Civil Rights Act of 1964 (the “civil rights lawsuit”).  For relief, petitioner requests that the charges be “overturned” and expunged from his personnel file based upon the Appellate Division’s decision in White v. Roosevelt Union Free Sch. Dist. Bd. of Educ. (147 AD3d 1071).  Petitioner further argues that the fact that some of the claims in the civil rights lawsuit survived a motion to dismiss demonstrates that he “will most likely prevail” on the merits.

Respondent contends that the appeal must be dismissed for lack of service, for lack of jurisdiction and as untimely.  With respect to the hearing officer’s December 5, 2017 decision, respondent contends that I lack jurisdiction to review the decision of a hearing officer in a §3020-a proceeding.  To the extent petitioner complains about actions by the high school principal, respondent asserts that these claims accrued more than 30 days prior to service of the petition and, thus, are untimely.  Even if these claims were timely, respondent contends that petitioner failed to join the principal and other individuals about whom he complains as parties.  Respondent further argues that petitioner elected his remedies by pursuing harassment, discrimination and retaliation claims in the civil rights lawsuit and, thus, they cannot be considered in this proceeding.

The appeal must be dismissed for improper service.  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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). 

Here, the secretary to the superintendent indicates in an affidavit that, on January 25, 2018, the president of the Roosevelt Teachers’ Association (“union president”) handed her a copy of the petition in the instant matter.  According to the secretary, the union president did not ask whether the secretary was authorized to accept service of legal documents.  The secretary further asserts that she is not authorized to accept service on behalf of the superintendent, the school district or respondent. 

In a reply, petitioner asserts that when the union president served the petition, he “directly stated that they were legal papers and ... were intended for ... the superintendent.”  Weighing the parties’ submissions, I find that respondent has met its burden of proving its affirmative defense that service was improper.  Although petitioner disputes the secretary’s version of events, there is no evidence that petitioner has personal knowledge of the circumstances under which the union president delivered the petition to the secretary.  Moreover, petitioner did not submit an affidavit from the union president contesting the secretary’s assertions.  I therefore find that petitioner has not rebutted the evidence provided by respondent.  Accordingly, on this record, the petition was not properly served and the appeal must be dismissed (see Appeal of J.M. and R.C., 58 Ed Dept Rep, Decision No. 17,470; Appeal of a Student with a Disability, 54 id., Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).

In light of this disposition, I need not address the parties’ remaining contentions.  However, I note that Education Law §3020-a was amended by Chapter 691 of the Laws of 1994 to divest the Commissioner of jurisdiction to review determinations of hearing officers, both final and non-final (Appeal of Lovinsky and Simpson, 57 Ed Dept Rep, Decision No. 17,422; Appeal of DeMarco, 48 id. 252, Decision No. 15,850; Appeal of T.W., 47 id. 400, Decision No. 15,735; Appeal of Fauvell, 47 id. 350, Decision No. 15,720).   Further, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).  The only relief sought by petitioner in this appeal is that the charges be overturned and expunged from his record and that he be awarded reimbursement for his expenses resulting from the charges, including attorneys’ fees and lost wages.  Thus, even if petitioner’s appeal had been properly served, it would be dismissed as I have no jurisdiction over his claims and lack the authority to grant the relief sought.

THE APPEAL IS DISMISSED.

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