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Decision No. 15,580

Appeal of D.P. from action of the Board of Education of the Baldwinsville Central School District regarding student discipline.


Decision No. 15,580

(May 7, 2007)


Mevec & Cognetti, attorneys for petitioner, Ralph A. Cognetti, Esq., of counsel


Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Colleen W. Heinrich, Esq., of counsel


MILLS, Commissioner.--D.P., a 14-year-old student, appeals a suspension by the Board of Education of the Baldwinsville Central School District (“respondent”).  The appeal must be dismissed.

On October 4, 2006, petitioner was in possession on school premises of a zip-lock bag containing a white powder.  He was charged with possession and distribution of a banned substance under respondent’s code of conduct and suspended for five days.  A superintendent’s hearing was held on October 11, 2006.  The superintendent found D.P. guilty of drug possession and suspended him until November 27, 2006.  The superintendent also determined that an additional period of suspension through January 29, 2007, recommended by the principal, would be held in abeyance pending his satisfactory behavior through that date.

By letter dated October 13, 2006, petitioner appealed to respondent, which upheld the superintendent’s decision.  This appeal ensued.  Petitioner requests that the suspension be expunged from his record.

According to the petition and the date of birth listed on the student’s 2006 attendance summary, petitioner is under the age of 18, and does not claim to be emancipated.  Because an unemancipated person under the age of 18 is not legally competent to maintain a proceeding pursuant to Education Law §310, the appeal must be dismissed (Appeal of A Student, 46 Ed Dept Rep ____, Decision No. 15,546; Appeal of Farber, 33 id. 424, Decision No. 13,100).

In addition, petitioner failed to properly serve the petition upon respondent.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If the school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or to any member of the board of education, 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]).  Petitioner submitted an affidavit of service of the petition, sworn to by Ralph A. Cognetti, Esq., in which Mr. Cognetti states he served the petition on appeal upon Michael A. Shusda, district clerk, by delivering a true copy of the aforementioned document to Lynn Voutsinas.  That individual is not one of the persons authorized to accept service according to the Commissioner’s regulations, and there is no evidence in the record that she has been designated by the board of education to accept service for the district.  When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper (Appeal of Sheppard, 41 Ed Dept Rep 99, Decision No. 14,627: Appeal of Mackay, 39 id. 815, Decision No. 14,391; Appeal of Bowers, 34 id. 603, Decision No. 13,424).

Finally, the petition must also be dismissed for lack of proper verification.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal before the Commissioner be verified.  The petition must be verified by the oath of at least one of the petitioners.  Here the petitioner did not verify the petition.  Instead, the verification is signed by petitioner’s counsel.  Where a petition is not properly verified, it must be dismissed (Appeal of Booker, 40 Ed Dept Rep 447, Decision No. 14,523; Appeal of Phillips, 40 id. 241, Decision No. 14,471)

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