Appeal of FRIENDS TO THE ELDERLY, YOUTH & FAMILY CENTER, INC. from action of the State Education Department and the Board of Education of the City School District of the City of Buffalo regarding the provision of supplemental educational services.

Decision No. 15,489

(November 21, 2006)

City of Buffalo Dept. of Law, Michael B. Risman, Esq., Corporation Counsel, attorney for respondent, Denise M. Malican, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Buffalo (“respondent”) regarding a contract for summer supplemental educational services (“SES”).  The appeal must be dismissed.

On August 11, 2005, respondent sent petitioner, an approved SES provider, a contract for 2005-2006.  By letter dated August 18, 2005, petitioner objected to the contract provision that SES for the district was to end on June 30, 2006, rather than in August, as it had in previous years.  Petitioner claimed that this decision eliminated summer SES for eligible students.

In response to petitioner’s inquiry, an October 6, 2005 letter from the State Education Department informed petitioner that the Department does permit districts and providers to negotiate the start and end dates of full-year programs.  The response also stated that a district must ensure that it meets its obligation to spend 20% of its Title I allocation for choice-related transportation and SES.  This appeal ensued. 

Petitioner requests that summer SES services be made available in respondent’s district pursuant to the 20% requirement.  Respondent argues, interalia, that 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]).

Petitioner submitted an affidavit of personal service that named respondent’s director of Title I programs as the recipient.  However, the appeal papers were actually delivered to a member of the district’s clerical staff who was not authorized to accept service.  Therefore, service was improper and the appeal must be dismissed as to respondent.

The appeal must be dismissed for lack of jurisdiction to the extent that petitioner challenges actions of the State Education Department.  It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department (Appeal of New York Inst. of Massage, Inc., 45 Ed Dept Rep 495, Decision No. 15,391; Appeal of Karpen, 40 id. 199, Decision No. 14,460; Appeal of the Bd. of Educ. of the City School Dist. of the City of Rome, 23 id. 382, Decision No. 11,253, affdsubnomBd. of Educ., Rome City School Dist. v. Ambach and Polizzi, 118 AD2d 932). Such actions can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.

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

THE APPEAL IS DISMISSED.

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