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Decision No. 16,422

Application of the BOARD OF EDUCATION OF THE KINGS PARK CENTRAL SCHOOL DISTRICT for the removal of Elizabeth Barrett as a member of the Board of Education of the Kings Park Central School District.

Decision No. 16,422

(October 5, 2012)

LaRusso & Conway, LLP, attorneys for petitioner, Joseph Conway, Esq., of counsel

Bracken Margolin Besunder LLP, attorneys for respondent, David M. Sobotkin, Esq., of counsel

KING, JR., Commissioner.--Petitioner, the Board of Education of the Kings Park Central School District (“petitioner” or “board”), seeks the removal of Elizabeth Barrett (“respondent” or “Barrett”) from her position as a member of the board.  The application must be denied.

Barrett has been a member of the board since 2010.  Petitioner alleges that, since that time, Barrett has engaged in an “intentional pattern of disclosing confidential information to a third party” in violation of General Municipal Law, and has, therefore, “neglected her duty as a Board member.”

Respondent generally denies petitioner’s claims and argues that the application must be denied on several procedural grounds, including lack of jurisdiction, lack of proper verification, untimeliness and improper service.

I must first address petitioner’s reply.  Respondent argues that petitioner’s reply is untimely and contains affidavits and exhibits that should have been included with the application.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Respondent served its answer by mail on July 3, 2012.  Thus, petitioner’s reply should have been served no later than July 17, 2012.  Petitioner’s reply was served on July 20, 2012.  The reply, therefore, is untimely and I have not considered it.

In its memorandum of law, petitioner asserts that “[d]ue to [sic] difficulty in receiving the attached signed Affidavits within the Commissioner’s time restrictions, Petitioner has included the Exhibits mentioned in Petitioner’s Verified Reply as part of its Memorandum of Law.”  Petitioner clearly intended for such documents to be included in its verified reply, which, as discussed above, was untimely and has not been considered.  Likewise, to the extent the affidavits and exhibits were intended to be incorporated into the reply, they are also untimely and have not been considered.

Respondent further argues that, to the extent petitioner seeks to introduce the affidavits and exhibits as part of its memorandum of law, I should not consider them.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Accordingly, to the extent such additional materials seek to add belated assertions or exhibits that are not part of the pleadings, I have not considered them as part of petitioner’s memorandum of law.

Respondent also asserts that the application must be denied because petitioner’s first attempt at service was improper and petitioner did not effect personal service on respondent until more than 30 days after it learned of her alleged conduct.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).

The record indicates that the alleged conduct that forms the gravamen of petitioner’s removal action occurred between 2010 and 2011.  However, petitioner alleges that it was “notified [of such conduct] for the first time” on May 15, 2012.  Respondent disputes this allegation.  Even assuming that petitioner’s good faith discovery of the alleged conduct did occur on May 15, 2012, the application is still untimely as the latest date by which petitioner could have commenced this action by personal service on respondent was June 14, 2012.

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 an 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.

Three affidavits of service were submitted herein.  The first states that, at 11:01 p.m. on June 14, 2012, after “wait[ing] continuously” since 4:25 p.m., the process server affixed the petition and notice of petition with exhibits to the door of respondent’s residence.  The affidavit of service does not allege that any “diligent search” was made and 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 second affidavit states that respondent’s husband was personally served at their residence on June 16, 2012 at 8:51 a.m., and the third affidavit states that personal service was made on respondent herself outside her residence on June 18, 2012 at 8:40 a.m.  Both of these attempts at service occurred more than 30 days after petitioner alleges that it learned of respondent’s conduct.  Accordingly, petitioner failed to effect timely personal service on respondent and the application must be denied.

The application must also be denied for lack of jurisdiction.  Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office pursuant to Education Law §306.  In this case, petitioner failed to comply with §277.1(b), but 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 regulations is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660).  Therefore, the application for removal must be denied for defective notice.

Although the application must be denied on procedural grounds, one administrative matter remains.  Respondent has requested that I grant her a certificate of good faith pursuant to Education Law §3811(1).  However, Education Law §3811(1) does not provide for reimbursement of legal expenses incurred to defend “a criminal prosecution or an action or proceeding brought against ... [a board member] by a school district ... including proceedings before the commissioner of education ....”  Respondent, therefore, is not entitled to a certificate of good faith because the application for removal was brought by the school district of which she was an officer (seeApplication of the Board of Education of the Brentwood Union Free School District, 48 Ed Dept Rep 12, Decision No. 15,777; Application of the Board of Education of the West Babylon Union Free School District, 21 id. 41, Decision No. 10,592).  Accordingly, respondent’s request for a certificate of good faith must be denied.

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