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Decision No. 15,850

Appeal of NICOLA A. DeMARCO, from action of the New York City Department of Education regarding disciplinary charges.

Decision No. 15,850

(December 12, 2008)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Ivan A. Mendez, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner challenges disciplinary charges brought against him by the New York City Department of Education (“respondent”).  The appeal must be dismissed.

Petitioner is a tenured teacher employed in respondent’s district since 1994.  On December 7, 2007, disciplinary charges were brought against him by his principal at Louis Armstrong Middle School, I.S. 227.  Petitioner demanded a hearing on the charges by a three-member panel pursuant to Education Law §3020-a, and demanded dismissal of the charges on the ground that disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.

Respondent refused petitioner’s demands on the grounds that it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4), and that its agreement with the United Federation of Teachers did not provide for three-member panels.  It also refused to dismiss the charges because it claims that authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District 30 on August 27, 2007.

Petitioner commenced this appeal on June 25, 2008, to seek dismissal of the disciplinary charges and to enjoin the disciplinary proceeding during the pendency of the appeal.  Interim relief was denied on July 8, 2008.

Petitioner argues that the alternative disciplinary procedures adopted by agreement between respondent and the United Federation of Teachers are improper and effectively deprive him of due process.  He contends that the disciplinary proceeding against him also violates his rights under the New York Human Rights Law and the federal Family and Medical Leave Act. 

Respondent denies any wrongdoing on its part and asserts several affirmative defenses, including lack of personal jurisdiction and lack of subject matter jurisdiction over some or all of petitioner’s claims.

The appeal must be dismissed for lack of personal jurisdiction.  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]). 

According to the affidavit of petitioner’s process server, he made service of the notice of petition and petition upon Christine J. Kicinski on June 25, 2008, at 52 Chambers Street, the location of the Chancellor’s office.  Respondent alleges that Ms. Kicinski is not a person authorized to accept service on its behalf.  Respondent alleges that “Ms. Kicinski informed the deliverer that she would not accept service on behalf of the DOE, and that he would have to serve the petition on the only agent authorized to accept service on behalf of the DOE, the Office of the Corporation Counsel.”  Respondent further avers that the Office of the Corporation Counsel was not served with the petition. 

Petitioner’s reply does not address or refute the statement attributed to Ms. Kicinski with respect to her lack of authority to accept service on behalf of respondent.  The reply states only, in a general way, that all of petitioner’s papers were served “properly, legally and sufficiently.”  This general statement is insufficient to contradict respondent’s assertion.

When there is no proof that an individual has been authorized to accept service on behalf of the respondent, service on that individual is improper and the appeal must be dismissed (Appeal of Baker, 47 Ed Dept Rep 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580).

The appeal must also be dismissed for lack of subject matter jurisdiction.  Education Law §3020-a was substantially amended by Chapter 691, §3, of the Laws of 1994, effective for disciplinary charges filed on and after September 1, 1994.  Pursuant to that amendment, the Commissioner’s jurisdiction to review determinations of hearing officers, both final and nonfinal, has been removed (Appeal of T.W., 47 Ed Dept Rep ___, Decision No. 15,735; Appeal of Fauvell, 47 id. 350, Decision No. 15,720; Appeal of Frajer, 41 id. 403, Decision No. 14,725).  The amendment specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges (Education Law §3020-a[3][c][iii] and [iv]).  Petitioner’s request that I dismiss the charges would require my review of the merits, which is not within my authority (Appeal of McCall, 34 Ed Dept Rep 484, Decision No. 13,390).

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