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Decision No. 14,184

Appeal of C. D., on behalf of her son S. D., from action of the Board of Education of the Lake Placid Central School District regarding student discipline.

Decision No. 14,184

(July 30, 1999)

MILLS, Commissioner .--Petitioner resides in Illinois. During the 1998-1999 school year, her son, S. D., was in training as a speed skater at the United States Olympic Training Center in Lake Placid, New York, and attended Lake Placid Senior High School.

Petitioner appeals with respect to certain disciplinary suspensions imposed upon her son during the 1998-1999 school year. It appears that S. D. received a total of three suspensions, but petitioner seeks to annul only a five-day suspension assessed on February 1, 1999, and a four-day suspension assessed on March 8, 1999. She also requests that these matters be expunged from S. D.'s school record. The appeal must be dismissed.

It appears that petitioner originally caused a petition to be delivered to the district by Federal Express, with delivery occurring on March 11, 1999. After the petition was received by my Office of Counsel, a staff member telephoned petitioner, advised her that service by Federal Express was not permissible, and returned the petition. The cover letter indicated a defect in personal service as required by 8 NYCRR "275.8. The letter also indicates that a copy of a handbook containing regulations that govern the appeal process was sent to petitioner with the returned petition.

Petitioner then attempted to make service on the district by mail. The affidavit of service indicates that this was done " . . . by depositing true copies of the foregoing documents by Express/Certified Mail, Return Receipt Requested, enclosed in a postpaid properly addressed wrapper, in Chicago, Illinois, a post office [sic] official depository under the exclusive care and custody of the United Post Office Department [sic] within the State of Illinois."

Section 275.8 provides in pertinent part:

  1. Petition. A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner. 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 has attached a document entitled "Motion to Accept Service" which asks that I allow service by certified mail, return receipt requested. However, it is clear from the wording of "275.8 that the Commissioner can only approve an alternate method of service where a respondent cannot be found upon a diligent search, and service cannot be made on a person of suitable age and discretion at his residence. A school district, in contrast to an individual respondent, can be found at a fixed location, and with fixed office hours. For that reason, no alternate form of service is permitted. As a result, by failing to make personal delivery of the petition to respondent as required by the regulation, jurisdiction over the respondent is lacking, and the appeal must be dismissed.

Respondent has not filed an answer or any other papers. While petitioner argues that Commissioner's Regulation "275.11(a) requires that statements contained in the petition be deemed to be true statements, that rule can only be applicable where jurisdiction has been properly obtained over a respondent and the respondent has then defaulted.