Application of PARSA KARIMI for the removal of Ralph Morales as president of the Board of Education of the Farmingdale Union Free School District.

Decision No. 18,345

(September 26, 2023)

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

ROSA., Commissioner.--Petitioner seeks the removal of Ralph Morales (“respondent”) as board president of the Board of Education of the Farmingdale Union Free School District (“board”) pursuant to Education Law § 306.  The application must be denied.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  During its December 7, 2022 board meeting, petitioner asked the board several questions, including one pertaining to the necessity of safe spaces within the district.  As part of its response, respondent stated that safe spaces become necessary when adult community members like petitioner call the “Gay and Lesbian Alliance a cult” that is “ensnaring kids into a web.”  This appeal ensued.  Petitioner’s request for interim relief was denied on February 13, 2023.

Petitioner argues that respondent defamed him at the December 7, 2022 board meeting and that his children are now “susceptible to bullying and hate due to the [r]espondent’s defamation.”  Petitioner also claims that respondent’s comments have had a negative personal and professional impact on him.  For relief, petitioner requests respondent’s removal from office.

Respondent argues that the application is untimely and must be dismissed for improper service.  Respondent also asserts, among other claims, that allegations of defamation and slander are outside the jurisdiction of the Commissioner.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or 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 timeframe also applies to a removal application pursuant to Education Law § 306 (8 NYCRR 277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  Petitioner did not commence the instant appeal until February 6, 2023, almost two months after the December 7, 2022 board meeting.  Petitioner asserts that his delay in filing the appeal should be excused due to his lack of knowledge concerning the appeal process.  This is not a sufficient basis to excuse a delay in commencing an appeal or removal application (Application of S.D., 60 Ed Dept Rep, Decision No. 18,009; see Appeal of Carlson, 63 Ed Dept Rep, Decision No. 18,304; Appeal of D.B., 59 id., Decision No. 17,807).  Thus, the application must be denied as untimely.[1]

The application must also be denied for lack of personal service.  Section 275.8 (a) of the Commissioner’s regulations requires that a petition be personally served upon each named respondent.  The affidavit of service submitted by petitioner reflects that service was made upon the district clerk.  Petitioner was required to personally serve respondent, the individual whose removal he seeks (Appeal and Application of D.C., 57 Ed Dept Rep, Decision No. 17,245).  As a result, the appeal must be dismissed for improper service.[2]

Respondent requests a certificate of good faith pursuant to Education Law § 3811 (1).  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent's powers or the performance of the respondent's duties as a board member or other official listed in section 3811 (1).  The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240, Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  Since the appeal has been dismissed on procedural grounds without any findings on the merits, I hereby certify that respondent is entitled to the requested certification (Appeal and Application of Petrocelli, 62 Ed Dept Rep, Decision No. 18,223).

In light of this disposition, I need not address the parties' remaining contentions.

THE APPLICATION IS DENIED.

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