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Decision No. 15,696

Appeal of STEPHANIE BAKER from action of the Board of Education of the City School District of the City of Elmira regarding termination of a probationary appointment.

Decision No. 15,696

(December 14, 2007)

Mann Law Firm, P.C., attorneys for petitioner, Matthew J. Mann, Esq., of counsel

John J. Ryan, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the termination of her probationary appointment and denial of tenure by the Board of Education of the City School District of the City of Elmira (“respondent” or “board”).  The appeal must be dismissed.

Petitioner is a permanently certified teacher who has worked as both a substitute and a long-term substitute in respondent’s district at various times beginning in February 2002.  The parties disagree on the exact terms and durations of the periods of substitute and long-term substitute services provided by petitioner, but they do not disagree that petitioner never taught a full semester during the time of her first service to the time of her appointment to a three year probationary term on September 1, 2004.  She taught full time thereafter, until the end of the 2006-2007 school year.

By letter dated May 2, 2007, respondent’s superintendent advised petitioner that, at a meeting of the board to be held on June 6, 2007, he would recommend termination of her services as a probationary teacher effective July 6, 2007.  By letter dated May 9, 2007, petitioner’s attorney requested a written statement detailing the reasons for the superintendent’s negative recommendation.  By letter dated May 16, 2007, the superintendent responded to petitioner’s attorney with his reasons.  On May 30, 2007, the superintendent advised petitioner’s attorney that the board would meet on June 5, 2007, rather than June 6, 2007.

On June 5, 2007, the board terminated petitioner’s probationary appointment in accordance with the superintendent’s recommendation.  By letter dated June 6, 2007, the superintendent informed petitioner of the board’s action, and this appeal ensued.

Petitioner claims that the board’s action was arbitrary and capricious, in that petitioner’s evaluations were all favorable prior to September 2006.  At that time, a new assistant principal was hired, and petitioner claims that there was a drastic change in her evaluations because of “his apparent disdain for her.”  Petitioner also claims that, although she concedes she is “not entitled to traditional Jarema credit,” she should be afforded the same reduction in probationary service because of her competent past service.  Petitioner further claims that “for all intents and purposes [she] commenced her probationary period in the tenure track position of 6th grade . . . teacher . . . in March of 2004,” and should have been considered for tenure in March 2007.  Petitioner asks that she be deemed to have acquired tenure by estoppel.  In the alternative, she asks that I annul the board’s action of June 5, 2007, and direct the board to reconsider her position.  She also asks that I compel the board to enter into a “Juul agreement” (see Matter of Juul v. Bd. of Ed., 76 AD2d 837, affd 55 NY2d 648).

Respondent generally denies any wrongdoing and asserts that the termination of petitioner’s probationary appointment was in all respects proper.  Respondent also raises seven affirmative defenses, including improper service.

The appeal must be dismissed for lack of proper service on the board.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a 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 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’s affidavit of service only says that the notice of petition and petition were served on “Valerie–Secretary of Dr. Bryant.”  “Valerie” is Valerie Costiglia, Executive Secretary to the superintendent.  Respondent states that Ms. Costiglia is not the district clerk, a member of the board, or the superintendent of schools, nor has she or her position as Executive Secretary been designated by the board to accept service of process under §275.8.  Petitioner has not submitted a reply to this defense.

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 and the appeal must be dismissed (Appeal of J.L., 47 Ed Dept Rep ___, Decision No. 15,654; Appeal of D.P., 46 id. ___, Decision No. 15,580; Appeal of Sailsman, 45 id. 61, Decision No. 15,260).

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