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Decision No. 18,217

Appeal of CAREY MCMAHON from action of the Board of Education of the Enlarged City School District of the City of Middletown regarding the appointment of a superintendent.

Decision No. 18,217

(December 13, 2022)

Bond, Schoeneck & King, attorneys for respondent, Howard M. Miller, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the method by which the Board of Education of the Enlarged City School District of the City of Middletown (“respondent”) appointed its superintendent of schools.  The appeal must be dismissed.

After the unanticipated resignation of its former superintendent in October 2021, respondent appointed Amy Creeden to serve as interim superintendent.  Prior to her appointment, Ms. Creeden served the district in numerous positions, including principal and assistant superintendent.  Respondent indicated that it would conduct a nationwide search for a permanent superintendent and that the community would have opportunities to be involved in the selection process.

In March 2022, respondent permanently appointed Ms. Creeden as superintendent, citing the district’s need for continuity and her exemplary record as interim superintendent.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 29, 2022.

Petitioner is a resident and taxpayer in respondent’s district.  She  seeks to bring this appeal on behalf of the “community members” who signed an online petition.  For relief, petitioner requests an order requiring respondent to engage in a “transparent search for a new superintendent, as promised.” 

Respondent argues that the petition must be dismissed for failure to join a necessary party and for improper service.  Respondent also contends that petitioner lacks standing to bring this appeal.  On the merits, respondent asserts that it acted reasonably and within its authority to appoint Ms. Creeden as its superintendent.

The appeal must be dismissed for improper service.  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]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). 

According to petitioner’s affidavit of service, the petition was sent by U.S. mail to respondent’s district clerk.  Service by U.S. mail does not constitute valid service of a petition pursuant to Education Law § 310 (Appeal of G.C., 58 Ed Dept Rep, Decision No. 17,637; Appeal of L.L., 54 id., Decision No. 16,670; Applications of Balen, 40 id. 250, Decision No. 14,474).  Therefore, the appeal must be dismissed.[1]

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

It is undisputed that respondent planned to hold a nationwide search for a superintendent but changed its mind several months later.  The board of education of a small city school district such as respondent has broad powers concerning the district’s superintendence, management, and control—including the ability to appoint a superintendent (Education Law §§ 2503, 2507).  As respondent correctly notes, there is no requirement that a board of education conduct a nationwide search for a superintendent.  Petitioner has otherwise failed to demonstrate that respondent acted in an arbitrary or capricious manner in appointing Ms. Creeden as superintendent (see Appeal of S.E., 51 Ed Dept Rep, Decision No. 16,352; Appeal of J.P., et al., 42 id. 226, Decision No. 14,832).

In light of this determination, I need not address the parties’ remaining arguments.




[1] Petitioner’s affidavit of service contains the following notation:  “Affidavit of service by mail [s]ince the school district is on Spring Break this week.”  This does not establish that district offices were closed or that petitioner was otherwise prevented from effectuating personal service.