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Decision No. 14,893

Appeal of CARMINE PARISI from action of the Board of Education of the Connetquot Central School District and trustees Deborah Young, Lee Kennedy, Elizabeth Kennedy and Steven Baritz, regarding the residency of Mr. Baritz.



(June 19, 2003) 

Guercio & Guercio, attorneys for respondent board and respondents Young, L. Kennedy and E. Kennedy, Vanessa M. Sheehan, Esq., of counsel 

MILLS, Commissioner.--Petitioner seeks, among other things, removal of certain members of the Board of Education of the Connetquot Central School District ("respondent board"), based upon their alleged failure to act after learning that former trustee, Steven Baritz ("Baritz"), allegedly resided outside the Connetquot Central School District ("district").  Petitioner also seeks nullification of all votes in which Baritz participated after June 25, 2002.  The appeal must be dismissed.

Baritz served as a trustee of respondent board from July 2000 through July 11, 2002, when he resigned. At some point after taking office, Baritz purchased, and began to renovate, a home outside the district.  Petitioner submits affidavits from four individuals attesting to the fact that at respondent board"s meetings of April 9, May 28, June 11 and June 25, 2002, various district residents publicly questioned whether Baritz continued to reside within the district.  The affidavits also include statements claiming that at the April and May meetings, respondent Young acknowledged that Baritz had purchased a home outside the district, but stated that he continued to reside within the district.   Petitioner also submits a letter from a private investigation company, dated June 19, 2002, on which petitioner apparently bases his assertion that Baritz relinquished his residency status in the district "effective May 22, 2002."

Respondents" answer includes affidavits from respondents Young and E. Kennedy stating that Baritz had verbally assured them he continued to reside in the district, and an affidavit from L. Kennedy stating that she had no personal knowledge whether he had changed his residence before he resigned.  

By letter dated June 26, 2002, Baritz notified the district clerk that he was resigning from respondent board effective July 12, 2002, "at which date [his] permanent residence outside the district [would] become official."  This appeal ensued.

Petitioner alleges that after May 22, 2002, Baritz no longer resided within the district and was therefore ineligible to continue serving as a member of respondent board.  He further alleges that respondents Baritz, Young, E. Kennedy and L. Kennedy "knowingly and willingly acted to deny residents of the Connetquot School District the opportunity to elect a legal replacement... for Baritz...." Accordingly, petitioner requests that I remove Baritz from respondent board and declare that he has not been a resident of the district since May 22, 2002.  Petitioner further requests that I make a determination that respondents Young, E. Kennedy and L. Kennedy knowingly violated the law by permitting Baritz to participate in meetings of respondent board after they had learned that he was no longer a district resident.  Petitioner asks that I remove respondents Young and L. Kennedy from the board and order a special election to fill their seats. Petitioner also seeks to prohibit respondent E. Kennedy (who is no longer a board member) from ever holding office as a school board trustee.  Finally, petitioner requests that I declare null and void all votes taken by respondent board at, and subsequent to, its meeting of June 25, 2002, and that I order Baritz to reimburse the district for any costs associated with its defense of him in this matter.

Respondents assert that the notice of petition and service of the petition were defective, that the appeal is moot as to respondents E. Kennedy and Baritz and that the appeal is untimely as to certain allegations. Respondents further maintain the Commissioner lacks jurisdiction to grant certain aspects of the requested relief and that petitioner has failed to demonstrate that respondents  willfully violated the law or neglected any duty.   Respondents also ask that I reject petitioner"s reply.  Accordingly, respondents assert that the appeal should be dismissed in its entirety and request that I issue certificates of good faith to respondents Young, L. Kennedy and E. Kennedy pursuant to Education Law "3811(1).

Initially, I must address petitioner"s reply, which includes new assertions and additional exhibits.  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (8 NYCRR ""275.3 and 275.14; Appeal of O"Herron, 40 Ed Dept Rep 204, Decision No. 14,461; Appeals of Simpson, et al., 40 id. 5, Decision No. 14,402).  Therefore, while I have reviewed petitioner"s reply, I have not considered those portions that contain new assertions that are not responsive to new material or affirmative defenses set forth in the answer, nor have I considered exhibits that should have been submitted with the petition.   

The Commissioner"s regulations require that the notice of petition accompanying a removal application must specifically advise the school officer that the application is being made for his or her removal from office (8 NYCRR "277.1[b]).  In this case, petitioner failed to give such notice, and instead used the notice prescribed under "275.11(a) for appeals brought pursuant to Education Law "310.  A notice of petition which fails to contain the language required by the Commissioner"s regulations is fatally defective, and does not secure jurisdiction over the intended respondent (Application of Knapp, 41 Ed Dept Rep ____, Decision No. 14,608; Appeal of Khalid, 40 id. 621, Decision No. 14,570).  Accordingly, to the extent petitioner seeks removal of respondents Baritz, Young and L. Kennedy from respondent board, the appeal must be dismissed.

In addition, "275.8(a) of the Commissioner"s regulations, which applies to removal proceedings (8 NYCRR "277.1), requires that an appeal be commenced by personal service of a copy of the petition 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."  The record indicates that petitioner attempted to effect service upon respondents Baritz, Young and L. Kennedy by serving the petition upon respondent"s district clerk, but not upon them individually.  Accordingly, jurisdiction over those respondents was not obtained and the appeal must be dismissed as to them.

Similarly, petitioner"s failure to adhere to the procedural requirements of "275.8(a) of the Commissioner"s regulations also requires the dismissal of the appeal against respondent E. Kennedy.  In an affidavit of personal service included with the petition, the deponent states that he unsuccessfully attempted to personally serve the petition on respondent E. Kennedy one time on July 8, 2002 and two times on July 10, 2002.  He further avers that "a copy of said petition has been delivered to the home address of respondent via hand delivery on July 11, 2002, and overnight express mail...on July 11, 2002...."

Although the regulation permits service of a petition on a person of suitable age and discretion at a respondent"s residence where the respondent cannot be found, there is no authority for alternative service by mail or by posting, absent express authorization from the Commissioner (Appeal of Boni, 41 Ed Dept Rep ___, Decision No. 14,666; Application of Balen, 40 id. 250, Decision No. 14,474).  Since the Commissioner did not authorize alternative service, and no personal service was made upon respondent E. Kennedy, the appeal must be dismissed as to her.

The application to remove Baritz is dismissed as moot because he is no longer a board member.  It is well settled that the Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Reynolds, 42 Ed Dept Rep ___, Decision No. 14,834; Appeal of N.S., 42 id. ___, Decision No. 14,817).

Even if I were not dismissing this appeal on procedural grounds, I would dismiss it on the merits.  A member of a board of education may be removed from office pursuant to Education Law "306 when it is proved to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Bean, 42 Ed Dept Rep ___, Decision No. 14,810; Application of Lilker, 40 id. 704, Decision No. 14,588; Application of Kozak, 40 id. 195; Decision No. 14,459).  To be considered willful, respondents" actions must have been intentional and with a wrongful purpose.  In an appeal to the Commissioner of Education, petitioner has the burden of demonstrating a clear right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which he seeks relief (Application of Bean, supra; Application of Lilker, supra; Application of Kozak, supra).

I find that petitioner has failed to meet his burden of proof.  The petition consists of little more than petitioner"s beliefs, opinions and speculations concerning respondents" motivation for their decision not to investigate or take action upon information that Baritz allegedly resided outside the district.  As noted above, respondents Young and E. Kennedy submitted affidavits in which they assert that although they were aware of Baritz"s intention to move out of the district at some point, he had provided them with various assurances that he continued to reside within the district until the date specified in his letter of resignation.  Respondent L. Kennedy averred she had no personal knowledge whether he changed his residence before he resigned.  Petitioner has not presented any evidence to rebut respondents" assertions that they had no personal knowledge of Baritz"s alleged residence outside the district or that their actions were motivated by any wrongful purpose.  Therefore, on the record before me, petitioner has failed to prove that respondents engaged in any willful or intentional misconduct.

Petitioner"s request that I order respondent to fill Baritz"s vacated seat by special election is without merit.  In general, boards of education have discretion to fill a vacancy by appointment or special election (Appeal of O"Bomsawin, 37 Ed Dept Rep 554, Decision No. 13,925).  Petitioner makes no showing that respondent has abused its discretion here.

Petitioner has also failed to demonstrate that all votes taken by respondent board at, and subsequent to, its meeting of June 25, 2002 should be declared null and void.  Assuming, arguendo, that Baritz did not reside within the district after May 22, 2002, as petitioner alleges, he nevertheless was a defacto member of the board of education until the date of his resignation.  Accordingly, I would not invalidate any of the actions taken by the board in which Baritz participated as a defacto member (Appeal of Roy, 31 Ed Dept Rep 497, Decision No. 12,713).

 Finally, respondents request that I issue certificates of good faith pursuant to Education Law "3811(1).  It is clear that the board of education was on notice of this proceeding because it was named as a party and it provided a defense for respondents.  I find that the purpose of the statute was substantially satisfied and that adequate and timely notice of the proceeding was provided to the board of education (Application of Bean, supra).  In light of the fact that the appeal is dismissed on the merits, I certify pursuant to Education Law "3811(1) that respondents Young, L. Kennedy and E. Kennedy appear to have acted in good faith. 

In light of the foregoing disposition, I will not address the parties" remaining contentions.