Application of S.D. for the removal of Amy O’Brien and Mary Collins as members of the Board of Education of the Chenango Forks Central School District.

Decision No. 18,009

(June 21, 2021)

Bond Schoeneck & King, PLLC, attorneys for respondent board of education, Bethany Centrone, Esq., of counsel

Hinman, Howard & Kattell LLP, attorneys for respondents Amy O’Brien and Mary Collins, Ronald L. Greene and Leslie P. Guy, Esqs., of counsel

ROSA., Commissioner.--Petitioner seeks the removal of Amy O’Brien (“respondent O’Brien”) and Mary Collins (“respondent Collins”) as members of the Board of Education of the Chenango Forks Central School District (“respondent board”).  The application must be denied.

The record in this matter is sparse and not entirely clear regarding the events giving rise to this application.  It appears that respondent board engaged an attorney to investigate whether respondents O’Brien and Collins divulged confidential information to the president of the Chenango Forks Teachers’ Association.  The attorney produced an investigative report dated August 14, 2020, and a “Supplemental Report” dated December 1, 2020.  This appeal ensued.

Petitioner contends that respondents O’Brien and Collins divulged confidential information from executive session, violating board policy and their oaths of office.  Petitioner seeks the removal of respondents O’Brien and Collins from office.

Respondent board contends that the application must be dismissed for failure to identify respondents O’Brien or Collins in the caption of the appeal, as untimely, and for lack of personal service.  Respondent board further contends that petitioner has failed to allege or prove a willful violation of law or neglect of duty.

Respondents O’Brien and Collins submit letters in which they “join” the answer of respondent board and the defenses presented therein.

First, I must address a procedural matter.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR 276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR 275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).

Here, petitioner originally served the petition on respondent’s superintendent on December 22, 2020.  The following week, the superintendent avers, petitioner called him and said that he “should not have served the Petition” on him; “that he did not intend to ‘sue the District’”; and “only intended to file the Petition against the two individual Board members.”  Petitioner further asked the superintendent to “ignore” the petition.  Thereafter, on January 21, 2021, my Office of Counsel contacted respondent board to inquire whether it received the petition.  Respondent board thereafter appointed special counsel to represent it on January 27, 2021 and submitted its answer five business days later.  Petitioner did not submit a reply or otherwise respond to these contentions.  Given these circumstances, I will excuse the late filing of respondent board’s answer (see Appeal of Moss, 59 Ed Dept Rep, Decision No. 17,861; Appeal of Schonfeld, 38 id. 306, Decision No. 14,040).[1]

The application must be denied on procedural grounds.  First, petitioner failed to name respondents O’Brien and Collins in the caption of the petition.  An individual whose removal is sought pursuant to Education Law § 306 must be named as a respondent in the caption of the petition to inform him or her that he or she must enter a defense or face the possibility of removal (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756; Appeal of Foshee, 38 id. 346, Decision No. 14,051).  Failure to name the individual sought to be removed is a fatal flaw, resulting in failure to properly join such individual as a necessary party, and warranting denial of the application for removal (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756; Appeal of Foshee, 38 id. 346, Decision No. 14,051).  In this case, only respondent board was named as a respondent in the caption of the petition. Petitioner’s failure to name respondents O’Brien or Collins in the caption is a fatal flaw warranting denial of the application (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,387; Appeal of Hadden, 57 id., Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).

Additionally, the application must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The 30-day limitation period also applies to a removal application made pursuant to Education Law § 306 (8 NYCRR 277.1; Application of P.P., 57 Ed Dept Rep, Decision No. 17,321; Application of Kelty, 48 id. 476, Decision No. 15,921).

The acts of which petitioner complains occurred several months before the application was commenced.  However, even assuming that the December 1, 2020 supplemental report constituted a good faith discovery of the alleged conduct, the interpretation most favorable to petitioner, the application must still be dismissed as untimely.  Petitioner did not personally serve respondents O’Brien or Collins with a copy of the petition until January 22, 2021, 52 days after the date of the supplemental report.[2]  Additionally, although petitioner refers to a “2 – 1 vote in favor of proceeding with [a removal] hearing,” respondent denies that any such vote was taken.  Therefore, the application is untimely and must be dismissed (see 8 NYCRR 275.16).

Petitioner presents two explanations for the delay, neither of which are persuasive.  First, petitioner contends that he was unaware of the requirements for commencing an appeal to the Commissioner of Education.  The Commissioner has long held, however, that ignorance of applicable laws and regulations does not excuse a petitioner’s lack of compliance therewith (Appeal of D.B., 59 Ed Dept Rep, Decision No. 17,807; Appeal of Kirk, 39 id. 567, Decision No. 14,313).  Second, petitioner argues that the delay was attributable to petitioner’s efforts to secure a professional process server.  Service, however, may be effectuated by any person not a party to the appeal over the age of 18 years (8 NYCRR 275.8 [a]).  Additionally, section 275.8 (f) of the Commissioner's regulations, effective April 7, 2020, permitted electronic and mail service upon the district such that petitioner was not required to personally serve the petition (see Appeal of M.S., 60 Ed Dept Rep, Decision No. 17,926; Application of M.S., 60 id., Decision No. 17,951).

Although the application must be denied on procedural grounds, I admonish respondent board to work together for the benefit of the community and, most importantly, the students of the district. 

In light of this determination, it is unnecessary to address the parties’ remaining contentions.

THE APPLICATION IS DENIED.

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