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Decision No. 13,001

Appeal of the BOARD OF EDUCATION OF NYACK UNION FREE SCHOOL DISTRICT from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning charges preferred against Robert Lankau, a tenured teacher.

Decision No. 13,001

(September 3, 1993)

Plunkett & Jaffe, P.C., attorneys for petitioner, Kevin J. Plunkett, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, Conrad W. Lower and James J. Brady, Esqs., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the Nyack Union Free School District (the "district"), appeals the determination of a hearing panel convened pursuant to Education Law '3020-a which found respondent guilty of conduct unbecoming a teacher and imposed a one-year suspension without pay. Petitioner seeks reversal of the panel's decision to dismiss one specification and one charge, together with authorization to terminate respondent's services. The appeal must be dismissed.

Respondent is a tenured teacher of mathematics assigned to the Nyack High School. The district has employed respondent as a secondary school teacher for 21 years. On December 21, 1989, petitioner found probable cause to bring charges against respondent. The first charge, conduct unbecoming a teacher, consisted of ten specifications alleging that respondent had inappropriately touched four female students. The second charge, insubordination, alleged that respondent had failed to follow a directive to refrain from touching a female student. A panel was convened and hearings were held on six dates between May 17, 1990 and May 21, 1991. On June 30, 1992, the panel found respondent guilty of specifications 1 through 9 of the first charge, and recommended a one-year suspension without pay. The district commenced this appeal on September 14, 1992.

Petitioner contends that the hearing panel made various errors of law and fact in rendering its decision. Petitioner requests that I substitute my judgment for that of the hearing panel and find respondent guilty of specification 10 of Charge I and Charge II, and authorize respondent's dismissal.

Respondent contends that the appeal must be dismissed because the petition was not properly served in accordance with 8 NYCRR '275.8(a). On the merits, respondent argues that the panel did not err in dismissing specification 10 and Charge II and claims that the penalty imposed should not be disturbed.

Respondent has raised several procedural issues which I will first address. Respondent asserts that substituted service on his spouse was improper because petitioner did not exercise due diligence in attempting to personally serve him, and that he was served too late in the day. Petitioner's affidavit of service acknowledges serving respondent at 8:55 p.m. on September 8, 1992 by substitute service upon his wife. Petitioner's affidavit also states that substitute service was made after "having been unable to personally serve respondent upon diligent search." An affidavit from respondent's wife states that the process server arrived at her home at approximately 9:15 p.m. at which time she informed him that respondent was not at home but would be available at 10:00 a.m. the next day. Petitioner alleges no other attempts to personally serve respondent.

Commissioner's regulations require a party to use "due diligence" to effect personal service before utilizing substitute service. Where petitioner made an initial attempt to personally serve respondent before utilizing substitute service, I held that substituted service in those circumstances was permissible (Application of Griffin, 31 id. 221; Matter of Community School Bd. No. 22 of the City of New York, 22 id. 307 [1982]). Since there is no evidence whatsoever of petitioner's prior attempts to serve respondent personally, I find the use of substitute service, under the circumstances presented here, impermissible. Failure to demonstrate that personal service was accomplished in accordance with 8 NYCRR '275.8(a) requires dismissal of the appeal as to the party not served (Appeal of the Board of Education of the Sachem Central School District, 31 Ed Dept Rep 277). Since petitioner has not demonstrated that proper service was made upon respondent, the appeal must be dismissed.

Because the appeal is procedurally defective, I cannot reach the merits of petitioner's claims.