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Decision No. 15,352

Application of DIANNE HAMILTON for the removal of Thomas Parsley, Jr., as a member of the Board of Education of the Hempstead Union Free School District.

Decision No. 15,352

(January 24, 2006)

Douglas L. Thomas, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner seeks the removal of Thomas Parsley, Jr. ("respondent") from office as a member of the Board of Education of the Hempstead Union Free School District ("board"). The application must be denied.

Petitioner contends that respondent should be removed due to his alleged conduct on September 5, 2003, April 1, 2004 and September 21, 2004. Specifically, petitioner claims that on September 5, 2003, respondent refused to permit an assemblywoman to visit an elementary school in the district. On September 16, 2003, respondent wrote to the assemblywoman on his own behalf, informing her that she needed to make an appointment prior to visiting district schools. Petitioner contends that the letter was unauthorized and inappropriate.

Petitioner also asserts that, at board meetings held on April 1 and September 21, 2004, respondent "delayed passage of educational items," acted in a disrespectful or threatening manner, made discriminating and disparaging comments, and interfered with the day-to-day operation of the school district. She maintains that respondent's actions warrant his removal from office.

Initially, I note that petitioner's reply contains material that goes beyond the scope permitted by the Commissioner's regulations. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).Therefore, while I have reviewed petitioner's reply, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). The 30-day limitation period also applies to a removal application made pursuant to Education Law �306 (8 NYCRR �277.1; Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Bean, 42 id. 171, Decision No. 14,810. Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).

The latest incident cited by petitioner in her application occurred on September 21, 2004. The 30-day period in which to file an application for respondent's removal, therefore, expired on October 21, 2004. Although petitioner attempted to initiate a removal proceeding on October 19, 2004, petitioner failed to properly serve respondent in accordance with �275.8 of the Commissioner's regulations. Nor was the petition verified, as required by ��275.5 and 275.6 of the Commissioner's regulations. Petitioner did not properly serve a corrected petition until November 9, 2004, beyond the 30-day period. Petitioner offers as an excuse her lack of experience and knowledge of the appeal process, which, as stated above, does not constitute a sufficient basis to excuse the delay. The application, therefore, must be dismissed as untimely.

The notice of petition is also defective. The Commissioner's regulations require that the notice accompanying a removal application 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 regulation is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Parisi, 42 Ed Dept Rep 400, Decision No. 14,893; Application of Knapp, 41 id. 41, Decision No. 14,608; Appeal of Khalid, 40 id. 621, Decision No. 14,570).

The application is also moot. The Commissioner will only decide 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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). According to records in possession of the State Education Department, respondent is no longer a member of the board. Accordingly, petitioner's request for respondent's removal is academic.

Although the application is denied for the foregoing reasons, one administrative matter remains. Respondent has requested that I grant him a certificate of good faith pursuant to Education Law �3811(1). Such certification is solely for the purpose of authorizing the board to indemnify respondent for legal fees and expenses incurred defending a proceeding arising out of the exercise of his powers or the performance of his duties as a board member. It is appropriate to issue such certification unless it is established on the record that the requesting board member or trustee acted in bad faith (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Zimmerman, et al., 42 id. 205, Decision No. 14,823). Based on the evidence in this record, I am constrained to issue a certification for the limited purpose of �3811(1), with the admonition that it is in no way intended to be construed as approval of the alleged actions.