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Decision No. 17,449

Appeal of D.B., on behalf of his son D.B., from action of the Board of Education of the Hamburg Central School District regarding student discipline and application for the removal of board members David Yoviene, Thomas F. Flynn III, Patricia Brunner-Collins, Cameron Hall, Laura Heeter, and Robin List and superintendent Michael Cornell.

Decision No. 17,449

(July 16, 2018)

Hodgson Russ LLP, attorneys for respondents, Andrew J. Freedman, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the April 21, 2015 action of the Board of Education of the Hamburg Central School District (“board”) upholding his son’s suspension and seeks the removal of board members David Yoviene, Thomas F. Flynn III, Patricia Brunner-Collins, Cameron Hall, Laura Heeter, and Robin List and the removal of superintendent Michael Cornell (collectively, “respondents”).  The appeal must be dismissed and the application denied.

During the 2014-2015 school year, D.B. was enrolled in the eighth grade in respondents’ schools and was the subject of student discipline, which was the subject of a previous appeal (see Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244).  The facts regarding D.B.’s disciplinary history are more fully set out in that appeal and briefly summarized herein.  On November 13, 2014, D.B. received a five-day in-school suspension to be served from November 13 through November 19, 2014.  On December 19, 2014, D.B. received one day of in-school suspension and two days of out-of-school suspension.[1]  On December 23, 2014, D.B. received another one-day in-school suspension as well as an additional four days of out-of-school suspension.

By letter dated January 8, 2015, respondent’s interim superintendent of schools (“superintendent”) scheduled a long-term suspension hearing concerning the December 23, 2014 charges against D.B. for January 12, 2015.[2]  At the superintendent’s hearing, the district asserted that it believed there was a resolution of the charges as memorialized in the January 8, 2015 letter (see Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244), whereby the parties agreed that: (1) D.B. would be suspended out of school for the remainder of the 2014-2015 school year; (2) D.B. would receive home instruction for that period; and (3) petitioner and D.B. would waive all rights to a hearing under Education Law §3214 in addition to any and all rights to appeal to the board, the Commissioner or any other body authorized to consider an appeal.  However, by letter dated January 23, 2015, petitioner challenged the terms of the resolution of charges.

After the parties failed to reach a settlement agreement, the district convened a second hearing on February 10, 2015 on three of the four charges set forth in the January 8, 2015 letter.  Petitioner and D.B. were not present at this hearing.  The record indicates that it was the district’s position, at that time, that petitioner had no intention of cooperating with the district’s attempts to timely resolve the matter.  By letter dated February 12, 2015, the superintendent issued a decision finding D.B. guilty of the charges against him, noting that, while the hearing officer recommended that D.B. be “suspended out of school through March 6, 2015 with a return date of March 9, 2015[,] ... short term suspensions do not seem to deter” D.B.  Thus, the superintendent recommended that D.B. be suspended for “an additional [] 12 school days” to be served prior to D.B.’s re-enrollment in respondent’s schools.[3]  By letter dated March 1, 2015, petitioner appealed this determination to the board.  By letter dated April 23, 2015, petitioner was notified that the board had met and denied his appeal on April 21, 2015.  Petitioner thereafter commenced an appeal pursuant to Education Law §310.  In that appeal, I found petitioner’s allegations -  which, in essence, attempted to challenge all suspensions imposed on the three dates indicated above – to be without merit (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244).  Specifically, I found that the board’s April 21, 2015 decision to sustain the superintendent’s determination to suspend the student for the December 23, 2014 conduct was based on competent and substantial evidence that the student participated in the objectionable conduct.  This appeal and application ensued.

Although the petition is not entirely clear, petitioner appears to again challenge “the April 21, 2015 actions” of the board upholding his son’s suspension. Petitioner also contends that the individual board members and superintendent committed misconduct in connection with the district’s disciplinary proceedings which culminated in the board’s April 21, 2015 determination.  Petitioner seeks a finding that “[p]resume[s]” D.B. to be “innocent” of the charged conduct and “pronounce[s] [D.B.] innocent.”  Petitioner also seeks an order designating district personnel to meet with petitioner and D.B. to develop a plan for D.B. to complete eighth grade or, alternatively, payment for alternative education. 

Petitioner also seeks the removal  of superintendent Michael Cornell and board members Cameron Hall, David Yoviene, Thomas F. Flynn III, Laura Heeter, Patricia Brunner-Collins, and Robin List for alleged wilful and intentional misconduct and neglect of duty by denying “all” of D.B.’s “due process” rights.  Petitioner further seeks an order directing the district to provide him with the annual reports filed for 2004 to 2014:

[S]pecifying all lawyers who provide legal services to the Hamburg  Central and Orchard Park School Districts and its [sic] respective Boards of Education, whether these lawyers were hired as employees, and all remuneration and compensation paid for legal services.  

Finally, petitioner further requests an “[i]nvestigation” into the events described in the petition.

Respondents assert that the instant appeal and application should be dismissed as untimely and for lack of personal service.  Respondents further argue that petitioner has failed to state a claim upon which relief may be granted.  Further, respondents allege that, other than the board’s April 21, 2015 determination upholding the superintendent’s disciplinary determination, petitioner fails to identify any action taken by respondents which could form the basis of an application or appeal to the Commissioner pursuant to Education Law §§306 or 310.  Respondents also allege that the petition fails to contain a clear and concise statement of petitioner’s claims (see 8 NYCRR §275.10).  Respondents further claim that this appeal is moot since D.B. has enrolled in another school district.  Respondents state that they acted in accordance with their  legal obligations and in good faith at all times.

The appeal and application must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations, which is made applicable to removal proceedings by Commissioner’s regulation §277.1, 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]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Here, the record indicates that petitioner failed to personally serve any individual(s) who were properly authorized to accept service on behalf of the district, the board, any individual board members or the superintendent.  Instead, petitioner only served a receptionist employed by the law firm which represents respondents in this proceeding.  Petitioner’s affidavit of service attests that the receptionist and a security guard “both confirm[ed] being duly authorized to accept service as per EXHIBIT 8 of the May 29, 2015 petition.”  In their answer, respondents deny that the board’s law firm or attorney is authorized to accept service on behalf of individual board members or the superintendent.  Petitioner does not respond to this contention in his reply.  When there is no proof that an individual is authorized to accept service on behalf of the named respondents, 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) and the application for removal must be denied (Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,907).

In his petition, petitioner argues that, in a May 18, 2015 letter (the “Exhibit 8” referenced in the affidavit of service), the school district attorney indicated that he was authorized to accept service on behalf of the district.  However, the record contains a copy of this letter, in which the school district attorney merely proffered the district’s “continued position regarding communications with district officials and employees,” which was that the school district attorney would accept “all requests for documents and information” from petitioner and act as an intermediary between petitioner and the district.[4]  Thus, the school district attorney did not represent that he was authorized to accept service of process on behalf of the district in this letter and, indeed, did not mention service of process whatsoever.  However, even assuming, arguendo, that the school district attorney represented that he would accept service on behalf of the district, petitioner seeks removal of individual board members and the superintendent, who must be personally served with a copy of any removal application (see Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,245).

Second, petitioner argues that he was justified in foregoing personal service because he requested the board members’ home addresses from the district, but the district failed to provide such addresses to him.  However, petitioner has pointed to no law, regulation or policy which would require respondent to provide him with the home addresses of board members.  While the Commissioner’s regulations require that a petition “be personally served upon each named respondent,” the regulations do not require that such service occur at the respondent’s residence, unless a named respondent cannot be found upon diligent search (8 NYCRR §275.8[a]).  Petitioner has made no such showing here.  Accordingly, I find that petitioner failed to serve a copy of the petition in accordance with 8 NYCRR §275.8 and that the appeal must therefore be dismissed and the application denied.

To the extent petitioner seeks the removal of individual board members and the superintendent, the application for removal must also be denied for failure to include the notice required by 8 NYCRR §277.1(b).  It is well-settled that 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 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) of the Commissioner’s regulations necessarily results in a jurisdictional failure and requires dismissal (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Appeal of Kelly, 45 id. 38, Decision No. 15,253). Accordingly, the application must be denied on this basis.

Further, to the extent petitioner intends to challenge the board’s April 21, 2015 decision to deny his appeal, the appeal must be dismissed based upon the doctrine of collateral estoppel.  As the Court of Appeals has explained:

The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (Ryan, et al. v. New York Tel. Co., et al., 62 NY2d 494, 500). 

It is well-settled that the principles of res judicata and collateral estoppel apply in appeals pursuant to Education Law §310 (see Appeal of Bach, 32 Ed Dept Rep 499, Decision No. 12,898; Appeal of Tobin, 30 id. 315, Decision No. 12,477). 

Here, as noted above, although not entirely clear, petitioner appears to again challenge respondent board’s April 21, 2015 determination, which issue was clearly raised in the prior appeal and decided against petitioner (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; see Appeal of Morris, et al., 36 id. 405, Decision No. 13,761; Wilson v. Dantas, 29 NY3d 1051).  Therefore, petitioner is estopped from relitigating respondent’s April 21, 2015 decision which upheld the superintendent’s determination.

To the extent petitioner seeks an investigation into the processes and practices of respondents as they relate to providing due process in student discipline matters, I note that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857). 

Further, to the extent petitioner requests access to records in this proceeding, including the annual reports, I note that such matters are appropriately addressed under the New York State Freedom of Information Law (“FOIL”) (see Public Officers Law Article 6), over which I lack jurisdiction.  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations 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 Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address this access to records request made by petitioner as part of the course of the instant appeal and his request must be dismissed.[5]

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




[2] This letter states that “[t]he superintendent’s office has received a request from Middle School Principal Jennifer Giallella to hold a [s]uperintendent’s [h]earing on the following [enumerated] charges” against D.B.  The charges in the January 8, 2015 letter were the same as in the December 23, 2014 notice.


[3] In this regard, I note that respondents’ answer states that “during 2015,” D.B. was attending school in Canada.


[4] I note that the other correspondences around this time period indicate that petitioner was seeking access to the home addresses for various district officials. 


[5] I note, however, that petitioner’s records access request may involve documents held by the Orchard Park Central School District, which is not a party to this proceeding.