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Decision No. 15,354

Application of MEE JO from action of Judith P. Staples, as Superintendent of the City School District of the City of Corning, and appeal from actions of Judith P. Staples and Richard A. Kimble, regarding a student election.

Decision No. 15,354

(January 24, 2006)

Harris Beach LLP, attorneys for respondents, Alfred L. Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Judith P. Staples ("Staples") as Superintendent of the City School District of the City of Corning, and requests that Richard A. Kimble ("Kimble"), Principal of respondent's Corning Free Academy Middle School, conduct a new student election. The application must be denied and the appeal dismissed.

Petitioner's daughter was an unsuccessful candidate in the October 2004 student election at Corning Free Academy. By letter dated October 4, 2004, petitioner had requested that she be allowed to be present during ballot counting. Petitioner contends that Kimble, Staples, and other district staff misled her about where the ballots were being counted and by whom and that Staples told her that she had no right to be present while the ballots were counted.

Petitioner alleges that the election was unfair because a teacher counted the ballots alone at her home and asserts that Kimble should have provided more reliable ballot counting. Petitioner also alleges that Staples conducted an unfair election out of malice for petitioner. Petitioner asks that Staples be removed for her alleged fraudulent conduct and that Kimble conduct a new election.

Respondents argue that petitioner's application for the removal of Staples must be dismissed for lack of proper notice. Respondents also assert that the appeal must be dismissed because petitioner failed to personally serve the named individuals. Respondents maintain that petitioner has failed to establish that another election is warranted or that Staples should be removed. Respondents also claim that petitioner's reply is untimely and object to additional assertions and arguments in petitioner's reply and memoranda of law.

A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR �275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (id.). Respondents served their answer by mail on November 29, 2004. Therefore, the reply was due on or before December 13, 2004. Petitioner's reply was served by mail on December 12, 2004 and therefore was timely.

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 the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

A memorandum of law should consist of arguments of law (8 NYCRR �276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L. , 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540). Since petitioner's memorandum of law contains no arguments of law, I have not considered it.

The appeal and application must be dismissed because petitioner failed to personally serve the named respondents. An appeal to the Commissioner is commenced by personal service of the petition upon each named respondent (8 NYCRR �275.8[a]). The record shows that petitioner delivered copies of the petitions to the district clerk, but failed to personally serve either Staples or Kimble. Therefore, the appeal must be dismissed against both respondents (Appeal of Ritters, 44 Ed Dept Rep 117, Decision No. 15,117; Appeal of a Preschool Child with a Disability, 43 id. 343, Decision No. 15,012; Appeal of Bluemke, et al., 39 id. 447, Decision No. 14,281).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. A superintendent of schools may be removed from office pursuant to Education Law �306 when it is proven to the satisfaction of the Commissioner that the superintendent 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 Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Lilker, 40 id. 704, Decision No 14,588; Application of Kozak and Hetey, 40 id. 195, Decision No. 14,459). To be considered willful, the superintendent's actions must have been intentional and with a wrongful purpose.

In an appeal or removal application petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of Ewart, 44 Ed Dept Rep 147, Decision No. 15,127) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Ewart, 44 Ed Dept Rep 147, Decision No. 15,127; Appeal of Lilker, 40 id. 704, Decision No. 14,588). Petitioner has failed to establish that Staples' actions constitute a willful violation or neglect of duty under the law or that a new election is warranted.

In light of this disposition, I need not address the parties' remaining contentions.