Decision No. 13,077

(December 31, 1993)

Whiteman, Osterman & Hanna, attorneys for petitioner, Melvin M. Osterman, Jr., Esq., of counsel

Judge & Duffy, Esqs., attorneys for respondent, H. Wayne Judge, Esq., of counsel

SOBOL, Commissioner.--Petitioner, superintendent of the Willsboro Central School District, appeals his suspension without pay during the period of an employment contract by respondent Board of Education of the Willsboro Central School District. The appeal must be dismissed.

This is the second appeal involving charges brought by respondent against petitioner. The facts involving the first set of charges are set forth in Appeal of Cauley, 32 Ed Dept Rep 422, and will not be repeated here. In that decision, pursuant to an interim order, respondent was directed to pay petitioner his salary pending resolution of disciplinary charges against him.

Petitioner was suspended without pay for a second time on July 15, 1993. At the same board meeting, respondent voted to pursue an additional disciplinary charge against petitioner and scheduled a hearing on that charge for August 11, 1993.

On August 6, 1993, I issued an interim order in which I stated that there had been no final resolution of the issues presented on the original appeal and directed respondent to pay petitioner at his regular salary pending the resolution of the additional disciplinary charge.

The petition, in addition to the invalidation of the suspension without pay, requests that I direct the board to appoint a hearing officer from the list of hearing officers maintained for proceedings pursuant to Education Law '3020-a. Respondent has indicated that it intends to hear the proof with respect to the additional disciplinary charge itself, without using a hearing officer.

The appeal must be dismissed. In respondent's answer, dated several days after my interim order, the issue of lack of jurisdiction is raised. Specifically, respondent alleges that petitioner personally served the petition on a district employee who was not authorized to accept service, both in violation of 8 NYCRR '275.8. Petitioner's affidavit of service instead indicates service by Linda Cauley upon Jeffrey Kaleita, described as "Treasurer of the Willsboro Central School Board." Pursuant to 8 NYCRR '275.8(a), if a school district is named as a party respondent, "service upon such 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 of such school district, 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."

Petitioner's reply papers do not address the service issue. Even if petitioner's affidavit of service is correct and the petition was not served by a party, the person served does not hold one of the positions designated in the regulation, and petitioner has failed to set forth any proof that Mr. Kaleita was designated by the board of education to accept service. Because petitioner has the burden of proving service in compliance with the regulation and petitioner has failed to meet that burden, the appeal must be dismissed.

The appeal would also be dismissed on the merits. Petitioner cites no provision of his employment contract which would require respondent to employ a hearing officer from the list maintained pursuant to Education Law '3020-a with respect to the additional charges. Indeed, the topic is not even mentioned in petitioner's memorandum of law. Petitioner bears the burden of proving a clear right to the relief requested, but has failed to do so (Appeal of Hartmann, 32 Ed Dept Rep 640; Appeal of Keller, 32 id. 47; Matter of Zimmer, 20 id. 657).

THE APPEAL IS DISMISSED.

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