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Decision No. 16,050

Application of KATHLEEN VENDEL for the removal of Sharon Varalli as president of the Board of Education of the Marion Central School District.

Decision No. 16,050

(April 8, 2010)

Wayne A. Vander Byl, Esq., attorney for respondent

STEINER, Commissioner.--Petitioner seeks the removal of Sharon Varalli (“respondent”) from her position as president of the Board of Education of the Marion Central School District (“board”).  The application must be denied.

Petitioner attended a July 13, 2009 board meeting where she read a statement to the board regarding a number of issues of concern.  In addition, petitioner presented a brochure, published by the board, on which petitioner noted edits for spelling, grammar and punctuation.  Petitioner alleges respondent made offensive remarks about petitioner at the close of the public portion of the board meeting.

Petitioner asserts that respondent stated “the person that corrected this is a [expletive] idiot.”  She claims the statement was made in front of two 15-year-old female students.  She asks that respondent be removed as president of the board for “intolerable behavior towards a parent and resident of the community...”

Respondent denies making such statement and contends petitioner has failed to establish any basis for her removal.  Respondent also asserts that petitioner failed to properly effect service upon her.  Respondent also maintains that petitioner’s unverified reply should be disregarded.

I will first address the procedural issues.  Pursuant to §§275.5 and 275.6 of the Commissioner’s regulations, all pleadings in an appeal must be verified and an affidavit of verification attached.  Petitioner’s reply is not verified and, therefore, may not be considered as part of the record in this appeal (Appeal of J.L., 41 Ed Dept Rep 62, Decision No. 14,615). 

The application must be dismissed for lack of proper service.  Commissioner’s regulation §275.8, which is made applicable to removal proceedings by Commissioner’s regulation §277.1, provides in pertinent part:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent’s 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 affidavit of service submitted herein states that service was made on the district clerk and not on respondent personally.  The affidavit of service does not allege that any “diligent search” was made, and the affidavit does not indicate that any attempt was made to serve respondent prior to serving the district clerk.  Moreover, no request for any alternate service was made to the Commissioner.  As a result, this matter must be dismissed (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Application of Barton, 48 id. 189, Decision No. 15,832).

The application must also be dismissed because the notice of petition is defective.  Commissioner’s regulations require that the notice accompanying a removal application specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent (Application of Barton, 48 Ed Dept Rep 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of Johnson, 45 id. 469, Decision No. 15,384).

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