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Decision No. 15,384

Appeal of GLEN W. JOHNSON from action of the Putnam-Northern Westchester Board of Cooperative Educational Services, Anita Feldman, President, and Joan Austin, Vice President, regarding a proposition.

Decision No. 15,384

(March 21, 2006)

Shaw & Perelson, LLP, attorneys for respondents, Margo L. May and Beth L. Sims, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Putnam-Northern Westchester Board of Cooperative Educational Services ("BOCES"), its President, Anita Feldman ("Feldman"), and Vice-President, Joan Austin ("Austin") (collectively referred to as "respondents"), regarding the publication of letters prior to a vote on a proposition. The appeal must be dismissed.

Petitioner objects to four letters signed by Feldman and Austin and published in newspapers in the BOCES region between January and April 2005. The letters advocated that residents vote in favor of a proposition authorizing the BOCES to sell a parcel of land. This appeal ensued. Petitioner's request for interim relief was denied on May 10, 2005.

Petitioner contends that respondents acted improperly. He seeks the removal of Feldman and Austin from their respective offices and requests that I rebuke the BOCES for improperly allowing the letters to be published. Petitioner also requests that I reject respondents ' answer as late and for lack of proper verification.

Feldman and Austin contend that they wrote the letters and submitted them for publication as individuals, and deny that they wrote them on behalf of or at the behest of the BOCES, or that BOCES funds or resources were used in the preparation or publication of the letters. Respondents also contend that the appeal must be dismissed as untimely, for improper notice and for lack of proper service. They further contend that petitioner has failed meet his burden of establishing the facts upon which he seeks relief or of demonstrating a clear legal right to relief.

Initially, I must address petitioner's objections to respondent's answer. First, petitioner requests that I not consider respondents' answer because it was not served within 20 days of the service of the petition. However, respondents attempted to seek an extension, any delay was minimal, and respondents' attorney experienced a family emergency. Under the circumstances and because petitioner replied to the answer, I have exercised my discretion pursuant to �276.5 and accepted respondents' answer (seeAppeal of Rotella, 40 Ed Dept Rep 385, Decision No. 14,506).

Petitioner also contends that respondents' answer lacks proper verification under Commissioner's regulation �275.5 because the BOCES' district superintendent, rather than respondent Feldman or Austin or another member of the BOCES board, verified the answer. Section 275.5 provides in relevant part:

An answer shall be verified by the oath of the respondent submitting such answer . . .. If the appeal is brought from an action of the trustee or the board of trustees or board of education of a school district, verification of the answer shall be made by any person who is familiar with the facts underlying the appeal.

Petitioner appeals the actions of BOCES as well as those of the individual respondents. Pursuant to the regulation, therefore, the district superintendent was authorized to verify the answer.

To the extent petitioner seeks the removal of respondents Feldman and Austin from their respective offices, the appeal must be dismissed for lack of notice. The office of president or vice-president of a school board is distinct from the office of board member (seeAppeal of Motoyama, 12 Ed Dept Rep 244, Decision No. 8,630). However, both board officers and board members are school officers (Education Law �2[13]), and the Commissioner has the power to remove school officers pursuant to Education Law ��306 and 1706. Further, Education Law �306 applies to members of BOCES (Application of Leman and Sluys, 39 Ed Dept Rep 330, Decision No. 14,252).

In an application to remove a school officer pursuant to Education Law �306, �277.1(b) of the Commissioner's regulations requires that the notice of petition specifically advise the officer that an application is being made for his or her removal from office. In this case, petitioner failed to comply with �277.1(b). He argues, however, that �277.1(b) is inapplicable because he does not seek to remove Feldman or Austin from the BOCES board, but rather from "the office she holds." As discussed above, however, an application to remove respondents from their respective offices is still a removal under Education Law �306 and requires notice under �277.1(b). A notice of petition that fails to contain the language required by �277.1(b) is fatally defective, and does not secure jurisdiction over the intended respondents (Application of Knapp; 41 Ed Dept Rep 41, Decision No. 14,608; Appeal of Khalid, 40 id. 621, Decision No. 14,570).

With regard to service, �275.8(a) of the Commissioner's regulations requires that an appeal be commenced by personal service of a copy of the petition upon each named respondent or, "if he [or she] 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 Feldman on April 25, 2005 at 4:00 pm., on April 27, 2005 at 3:30 p.m., and on April 29, 2005 at 4:40 p.m. When these attempts were unsuccessful, petitioner mailed the petition on April 30, 2005.

There is no authority for alternative service by mail or by posting, absent express authorization from the Commissioner (Applications of Balen, 40 Ed Dept Rep 250, Decision No. 14,474; Appeal of Ponella, 38 id. 610, Decision No. 14,103). Since I did not authorize alternative service, and no personal service was made upon Feldman, petitioner failed to obtain jurisdiction over her for this reason as well.

Petitioner's attempted service on BOCES was also deficient. Because BOCES has not designated the assistant superintendent to accept service on its behalf, petitioner also failed to obtain jurisdiction over the BOCES by virtue of this service.

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). In this case, the vote on the proposition was scheduled for January 17, 2005, but rescheduled twice because of inclement weather, initially to March 1 and finally to April 5. Petitioner submitted four letters with the petition, three of which were dated January 5, 2005, February 24, 2005 and March 31, 2005, respectively. The fourth letter was undated but pertained to the April 5 vote.

Because petitioner has not challenged the outcome of the proposition vote, claims regarding actions that occurred more than 30 days before his appeal was commenced are untimely (8 NYCRR �275.16; Appeal of Herloski, 43 Ed Dept Rep 348, Decision No. 15,014; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Carroll, et al., 42 id. 326, Decision No. 14,871). Thus, claims arising from the letters published in January and February are clearly untimely and will not be considered. Petitioner has not established that the undated letter was published within 30 days of service of the petition, so I have not considered it. Accordingly, only the letter of March 31, 2005 remains to be considered.

While it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election, individual board members are entitled to express their personal views about issues concerning the district and engage in partisan activity, provided school district resources are not used (Appeal of Goldin, 40 Ed Dept Rep 628, Decision No. 14,572; Appeal of Allen, 39 id. 528, Decision No. 14,300; Application of Dinan, 36 id. 370, Decision No. 13,752).

Feldman avers that the letters were not written on behalf of or at the behest of BOCES, that BOCES did not authorize the preparation or publication of the letters by resolution or otherwise, and that no BOCES resources were used in the preparation or publication of the letters. She further avers that she and Austin wrote the letters themselves, as individuals, and that the letter contained only their words and thoughts. Petitioner has presented no evidence to the contrary and thus has failed to meet his burden of proving that district resources were improperly used.

Although the appeal is dismissed, I am compelled to comment on the final paragraph of the March 31 letter. In that paragraph, Austin and Feldman state: "The BOCES Board strongly believes that it is our responsibility to move forward on a plan that is mutually beneficial to all of its school districts. We encourage voters to support this proposal on Tuesday, April 5." While board members have the right to express their individual opinions as long as no district resources are used, they would be very well served to avoid confusion and any hint of impropriety in future publications by clearly distinguishing their personal views from those of the board they represent.