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Decision No. 14,328

Appeal of STEWART S. LILKER from action of the Board of Education of the Freeport Union Free School District regarding district policies.

Decision No. 14,328

(March 30, 2000)

Ingerman, Smith, L.L.P., attorneys for respondent, Anna Scricca, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Freeport Union Free School District ("respondent") to adopt revised district policies. The appeal must be dismissed.

On July 1, 1999, respondent approved a newly revised district policy manual. The revised manual consolidated or eliminated many previous district policies and added several new policies. This appeal ensued. Petitioner's request to stay the adoption of the revised policy manual was denied on August 18, 1999.

Petitioner contends that respondent violated district policies, Education Law and the Regulations of the Commissioner of Education by failing to seek community input before revising the policy manual. Petitioner seeks to reinstate the former policy manual. Petitioner also initially requested the removal of the members of the board of education and its superintendent, Josephine Moffet, but later withdrew his request for such removals.

Respondent argues that the appeal should be dismissed as untimely and for lack of jurisdiction. Respondent also argues that petitioner lacks standing to bring this appeal as he has not been harmed by respondent's actions. Respondent contends that it followed existing district policies and provided opportunities for public input before adopting the revised policy manual.

As a threshold matter, I must address the additional pleadings and exhibits submitted by petitioner. These include an "affidavit in response to respondent's opposition papers of request for stay" with numerous exhibits. These papers contain new allegations and exhibits and were submitted without prior permission of the Commissioner of Education (8 NYCRR "276.5). Therefore, I have not considered them in making my determination. Additionally, petitioner's reply was submitted late, reargues allegations contained in his petition and includes new exhibits. The purpose of a reply is to respond to affirmative defenses or new material contained in an answer, and is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (8 NYCRR ""275.3 and 275.14; Appeal of Houghton, 38 Ed Dept Rep 777, Decision No. 14,141). Consequently, I have not considered the information contained in the reply which does not respond to respondent’s affirmative defenses or new material contained in the answer.

The appeal must be dismissed because of improper service. 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 (8 NYCRR "275.8[a]). In this case, the record shows that the petition was served on a member of the district’s clerical staff who was not authorized to accept service. Respondent submits an affidavit from the employee, who states that the person who served the petition insisted that she take the papers and never attempted to serve the superintendent who was in her office at the time. The employee further stated that at no time did she represent that she was authorized to accept service. Therefore, the appeal must be dismissed for lack of proper service (Appeal of Ponella, 38 Ed Dept Rep 610, Decision No. 14,310; Appeal of Ameri, 37 id. 652, Decision No. 13,949).

The appeal must also be dismissed on the merits. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of World Network International Services, Inc., 39 Ed Dept Rep 30, Decision No. 14,164). Petitioner has failed to establish that respondent violated any law, regulation, or policy in adopting the revised policy manual. To the contrary, the record shows that respondent established a committee to recommend revisions to the manual, invited the public to provide input, and discussed the progress of the policy manual revisions at board meetings prior to their adoption. Thus, on the record before me I find no basis to order the relief requested.

In light of this disposition, I need not address respondent’s remaining contentions.