Appeal of KATHLEEN A. KELLY from action of Marietta Fuentes Mee, Stephannie Andrews, and Patricia Cahaney, members of the Board of Education of the Amityville Union Free School District, regarding the provision of information to contributors.

Decision No. 15,253

(July 15, 2005)

Guercio and Guercio, attorneys for respondents, Raymond G. Keenan, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of board members Marietta Fuentes Mee, Stephannie Andrews and Patricia Cahaney (referred to individually as Mee, Andrews and Cahaney, and collectively referred to as "respondents"), regarding the provision of information to contributors. The appeal must be dismissed.

In April 2004, Mee and another candidate running for board office sent a letter to their supporters requesting continued support. The letter was addressed to "MAC (an acronym for Mee, Andrews and Cahaney) Pack" supporters with a return address to MAC Pack c/o Cahaney. The letter included an enclosure soliciting a $10 annual donation, which stated in pertinent part:

The money you give the MAC Pack is used ONLY to offset the cost of Election campaign literature and advertisements. ADDITIONALLY, if you give the MAC Pack your E-Mail address, we will E-Mail you updates on school issues and the monthly Board of Education Meeting minutes.

In a May 24, 2004 letter to the district clerk, petitioner questioned the legality of the April 2004 solicitation of funds and asked that action be taken. According to petitioner, the district clerk did not respond. This appeal ensued.

Petitioner alleges that the offer by Mee, Andrews and Cahaney to provide their contributors with updates on school issues and monthly board of education minutes via email was unfair because other district residents would not receive this service. Petitioner requests the removal of Andrews and Cahaney as board members and an investigation into the matter.

Respondents allege that they acted lawfully and did not engage in any improper conduct with respect to the April 2004 solicitation of funds. They further maintain that the petition should be dismissed on a number of procedural grounds, including failure to join necessary parties, failure to meet the notice requirements for the removal of board members under Education Law �306, timeliness and standing. In addition, respondents request a certificate of good faith pursuant to Education Law �3811.

Petitioner has submitted a reply memorandum of law. Section 276.4 of Commissioner's regulations provides that a reply memorandum will be accepted only with the prior approval of the Commissioner. Petitioner made no such application for prior approval and provides no explanation of the need for a reply memorandum. Therefore, I have not considered the reply memorandum (seeAppeal of Schadtle, 40 Ed Dept Rep 60, Decision No. 14,421).

The appeal must be dismissed for failure to join necessary parties. 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 D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953). 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 D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).

Petitioner seeks action against Mee, Andrews and Cahaney. As this proceeding will affect the rights of these individuals, each should have been personally served with the petition. However, the petition in this case was not personally served on Mee, Andrews and Cahaney, but was served instead on an individual employed in the district clerk's office. The appeal, therefore, must be dismissed for failure to join necessary parties.

To the extent petitioner seeks the removal of Andrews and Cahaney, the appeal must be dismissed 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 Knapp, 41 Ed Dept Rep 41, Decision No. 14,608; Appeal of Khalid, 40 id. 621, Decision No. 14,570). 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 (Application of Knapp, 41 Ed Dept Rep 41, Decision No. 14,608; Application of Brennan, 35 id. 214, Decision No. 13,520).

On June 30, 2004, Mee left the board. The petition in this appeal does not contain a request for relief in regard to Mee. Where a petition fails to state a comprehensible claim and fails to identify a specific remedy sought, it will be dismissed (see 8 NYCRR �275.10; Appeal of Darrow, 43 Ed Dept Rep 394, Decision No. 15,029; Appeal of Stephen and Roseanne W., 39 id. 808, Decision No. 14,388). Accordingly, the appeal is also dismissed as against Mee for failure to state a specific remedy.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. A member of a board of education may be removed from office pursuant to Education Law �306 when it is proved to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Application of Lilker, 40 id. 704, Decision No. 14,588; Application of Kozak, 40 id. 195, Decision No. 14,459). To be considered willful, a respondent's actions must have been intentional and with a wrongful purpose. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

In this case, petitioner has failed to establish a legal basis that would preclude Mee, Andrews and Cahaney as individuals from providing public information to their contributors via email. There is no evidence in the record that they in any way prevented residents from obtaining public information from the school district. In addition, Andrews' name does not appear in the April 2004 letter soliciting funds at issue here, and petitioner has not satisfactorily established that Andrews authorized or sent the letter. In sum, petitioner has not established in the record before me that Mee, Andrews and Cahaney were engaged in wrongdoing.

Petitioner requests an investigation into this matter. An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).

In view of the fact that petitioner's appeal is dismissed for the reasons set forth above, I certify that respondents appear to have acted in good faith, for the purpose of Education Law �3811(1).

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

THE APPEAL IS DISMISSED.

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