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Decision No. 16,469

 Application of STACIA KRONISER for the removal of Theresa Hogle and Malissa Hale as members of the Board of Education of the Edwards-Knox Central School District and for the removal of Superintendent Suzanne Kelly and Principal Michelle Varian.

Decision No. 16,469

(April 29, 2013)

Silver & Collins, attorneys for respondents, Andrew W. Silver, Esq., of counsel

KING, JR., Commissioner.--Petitioner seeks the removal of Theresa Hogle and Malissa Hale as members of the Board of Education of the Edwards-Knox Central School District and of Superintendent Suzanne Kelly and Principal Michelle Varian (collectively “respondents”). The application must be denied.

Although the application is unclear, petitioner appears to allege that respondents engaged in acts of “negligence” and “bullying” at various times in 2011. Petitioner also appears to challenge several decisions made by respondents in 2011 relating to, among other things, inappropriate lessons to students, staffing, budgeting, salaries and a superintendent’s contract. Petitioner asks that any monies lost by the district be recouped.

Respondent argues that the application must be denied for lack of jurisdiction, as untimely and for failure to state a claim.

The application must be denied for failure to comply with §277.1 of the Commissioner’s regulations. Section 277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office. 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 (Application of Carrion, 50 Ed Dept Rep, Decision No.16,228; Application of Vendel, 49 id. 361, Decision No.16,050). It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38,Decision No. 15,253).

The application must also be denied to the extent petitioner failed to serve respondents Varian, Hogle and Hale with the notice of petition and petition. 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, tothe 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]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939;Appeal of Naab, 48 id. 339, Decision No. 15,877). The record contains no evidence that the application was personally served on respondents Varian,  1   Hogle and Hale in accordance with §275.8 of the Commissioner’s regulations, and the application must therefore be denied as against them.

To the extent petitioner attempts to raise claims against the board, such claims must be dismissed for failure to properly join the board. As noted above, the record indicates that petitioner personally served the superintendent, which effects service on the board pursuant to §275.8(a) of the Commissioner’s regulations. However, because petitioner failed to name the board as a respondent, it was not properly joined as a party in the proceeding and any claims against it must be dismissed. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No.15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917;Appeal of Williams, 48 id. 343, Decision No. 15,879).

The application is also untimely. 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-daylimitation 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). With the exception of two newspaper articles from late December 2011, which do not constitute evidence of the truth of the statements contained therein (Appeals of Donahue, et al. and Anderson, et al., 52 Ed Dept Rep, Decision No. 16,431), all allegations and actions referenced in the application and exhibits occurred more than 30 days prior to service of the petition on January17, 2012. Therefore, the application must be denied as untimely.

Finally, although petitioner sets forth certain allegations pertaining to the Open Meetings Law, she states that she does not seek review of those allegations in this appeal. I note that Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No.15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886). Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

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





[1]   To the extent petitioner seeks removal of respondent Varian, the school principal, I note that a principal is a district employee and not a school officer subject to removal under Education Law §306(Appeal of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of aStudent with a Disability, 36 id. 181, Decision No. 13,694).