Instructions and Sample Forms for Filing an Appeal for Petitioners not Represented by an Attorney

NOTE: These instructions are only intended to serve as an additional aid to petitioners who are not represented by an attorney. The full set of rules of procedure are found in the regulations of the Commissioner of Education (Parts 275, 276 AND 277). All petitioners are encouraged to consult with their own attorney before filing an appeal. Special procedures apply to appeals involving homeless children and youth ( Information on filing an appeal involving homeless children and youth). Special procedures apply to appeals involving New York City charter school location/co-location and building usage plans (Information on filing an appeal involving New York City charter school location/co-location and building usage plans).

A ยง310 appeal is a formal appeal to the Commissioner of Education which must be initiated within 30 days of the decision or action complained of. If you have not filed your petition within 30 days of the action complained of, you must include in your petition the reasons your papers have been filed after the deadline. The Commissioner will then decide if you have shown "good cause" for late filing.

I. GENERAL GUIDELINES
  1. The petitioner is the person bringing the petition and verifying it (see description of verification below). While any individual may assist the petitioner in preparing the petition, the named petitioner in the appeal must be a person in parental relationship to the child. "Persons in parental relationship" include parents, guardians, custodians or persons having the care, custody or control of the child. If the student is over the age of 18, that individual may be the petitioner.

    If an appeal is brought involving issues unrelated to specific students, the petitioner must be an individual who has suffered personal damage or impairment of his or her civil, personal or property rights.

  2. The board of education (school district) or BOCES usually is the respondent.

  3. You may refer to the parties as petitioner (yourself) and respondent (the board of education, BOCES and/or their staff) in your papers.

II. DRAFTING A PETITION
  1. To bring an appeal you must provide:

    1. A Notice of Petition as the first page of the petition. (see Form 1). For appeals involving New York City charter school location/co-location and building usage plans, see the Notice of Petition required by Section 276.11(c)(2) (Form).

    2. A Petition (see sample petition- Form 6).

      1. The petition must be signed by the petitioner with petitioner's name, post office address and telephone number.

      2. The petition must be verified - A verified petition is a petition, signed by the petitioner, in the presence of a Notary Public, establishing that the petitioner is, in fact, the person making the complaint, is familiar with the facts of the complaint, and believes them to be true. (see Form 2)

  2. A caption should appear on the top of the first page of your petition and on all other forms and affidavits. (see sample petition- Form 6)

    1. You may wish to attach affidavits (sworn statements) from persons other than the petitioner, exhibits or other documents to your petition. If you do, you must label each exhibit (A, B, C, etc.) and refer to them in the petition.

  3. Your petition must be:

    1. typewritten

    2. double spaced

    3. on white 8 1/2 x 11 paper

    4. your claims must be set forth in short, numbered paragraphs.

      1. Each numbered paragraph must contain clear and concise statements to show why you are entitled to relief as a result of the actions or decisions complained of.

      2. Be sure the petition sets forth a clear statement of the actions of the school district about which you are complaining.

    5. You must end the petition with a demand for relief where you tell the Commissioner what you want him to order (e.g. stop the practice, restore the grade, return the student to school, etc.).

    6. If you wish to request an opportunity to appear before the Commissioner to present oral argument of the matter, you must include your request for oral argument in your petition.

III. REQUEST FOR A STAY

The Commissioner can temporarily undue the school district's action until your case is decided. This is called a "stay." If you want to request a stay of the opposing party's action while your case is before the Commissioner, you must include your request for a stay in the petition and state the facts and legal reasons why you believe a stay should be granted. You must include as part of your Notice of Petition an additional paragraph stating:

"Please take further notice that the within petition contains an application for a stay order. Affidavits in opposition to the application for a stay must be served on all other parties and filed with the Office of Counsel within three (3) business days after service of the petition."

NOTE: The request for a stay should be included in the petition and served at the same time.

IV. SERVING YOUR PAPERS
  1. Papers may be served by any person who is not the petitioner and who is over the age of 18.

  2. The notice of petition, petition, verification, along with affidavits, exhibits and other supporting papers must be served personally upon each respondent.

    1. If you are naming the board of education (school district) as respondent, a copy of all papers must be hand delivered to any one of the following:

      1. the district clerk,

      2. any member or trustee of the board of education, or

      3. the superintendent of schools or someone in the superintendent's office who has been designated by the board to accept service.

    2. If you are naming a BOCES as respondent, a copy of all papers must be hand delivered to:

      1. any member of the BOCES board or

      2. the district superintendent or someone in the district superintendent's office who has been designated by the board to accept service.

      3. If you serve someone who has been designated to accept service, you must state in the affidavit of service (Form 3) that the person served has been so designated.

      4. If the respondent cannot be found despite your "diligent search", the papers may be served by delivering them at the person's home with a person of "suitable age and discretion between 6:00 a.m. and 9:00 p.m.". However, you must be sure to describe in the affidavit of service (Form 3) all prior unsuccessful attempts to serve respondent.

      NOTE: If you are unable to serve the respondent in the manner described in step 4 after conducting a diligent search, you may call the State Education Department's Office of Counsel, at (518) 474-6400, to request permission for an alternative form of service.

      1. All subsequent papers may be served by mail or personally upon the respondent's attorney.

V. FILING THE PETITION AND FILING FEE
  1. Within 5 days after serving your petition on respondent, the original verified petition and an affidavit of proof of service (Form 3) for affidavit of personal service); must be sent to the Office of Counsel, Education Building, Room 148 EB, Albany, New York 12234.

  2. You must send a check for $20 payable to the State Education Department with the petition. The filing fee may be waived at the discretion of the Commissioner if a request is made in an affidavit by the petitioner (Form 4).

VI. RECEIPT OF ANSWER
  1. Twenty days after service of your petition, the respondent must provide you with a verified answer. The answer may be served on you by mail.

  2. If a stay was requested as part of the petition, the respondent must answer that part of the petition by providing an "affidavit in opposition" within three days after service of the petition. After that, the respondent must answer the rest of the petition within the twenty days as stated above.

VII. REPLY
  1. You may reply to any affirmative defenses or new material asserted by the district within 10 days after service of the answer. (If the answer was mailed, you have 14 days after the postmark date to serve a reply.)

  2. Your reply must also be verified (see Form 2).

  3. A copy of the reply must be served upon respondent's attorney by someone other than yourself who is over the age of 18. That individual must then complete the affidavit of service. (Form 5 must be completed if you mail your reply; Form 7 must be completed if you serve your reply by private express delivery service; Form 3 if you serve it personally).

  4. Mail the original signed copy of the verified reply to the Commissioner with the affidavit of service within 5 days after you have served the opposing party.

If you need further assistance, please call the Appeals Coordinator, at (518) 474-6400.

CHECKLIST
  1. COMPLETE THE FORMS:

    1. ____ Notice of Petition (Form 1) - Include notice of stay request if necessary. (see Instructions Part III ).

    2. ____ Petition (sample, Form 6) - Include all affidavits, exhibits, supporting documentation, etc. Include a request for a stay if you need an interim ruling.

    3. ____ Verification (Form 2)

  2. SERVE THE PAPERS:
    1. ____ Give a copy of all of the above to the proper person (see Instructions Part IV-2).

    2. ____ Remember that the petitioner cannot serve the papers, and the person serving the papers must be over 18.

    3. ____ Individual who serves the papers completes affidavit of personal service
      (Form 3).

  3. FILE THE PAPERS WITH THE COMMISSIONER:
    1. ____ File the original signed papers and affidavit of service and $20 filing fee or affidavit of waiver (Form 4) with the Commissioner within 5 days of serving the copies of all papers on the proper person.

  4. RESPOND TO THE COMMISSIONER:
    1. ____ In the event that the answer you receive from the respondent raises new issues not previously raised, prepare a typed verified reply responding only to those new issues. This reply must be served on the respondent's attorney and may be served by mail.
    2. ____ The individual who served the reply must complete the affidavit of service
      (Form 3, Form 5, or Form 7 depending on your method of service). Send your reply to the Commissioner with the affidavit of service.

PLEASE NOTE THAT THE FORMS PROVIDED ARE ONLY INTENDED TO SERVE AS A GUIDE. THEREFORE, IT WILL BE NECESSARY TO DRAFT A PETITION AND PROVIDE ORIGINAL NOTICES OF PETITION, VERIFICATIONS, ETC. WITH THE APPROPRIATE INFORMATION INCLUDED.

 

Last Updated: March 17, 2011