Application of CRYSTAL BARTON for the removal of Ralph R. Hernandez as a member of the Board of Education of the City School District of the City of Buffalo.

Decision No. 15,832

(September 17, 2008)

Lipsitz Green Scime Cambria, LLP, attorneys for petitioner, John M. Lichtenthal, Esq., of counsel

Kelly G. Eisenried, Esq., Assistant Legal Counsel, attorney for respondents

MILLS, Commissioner.--Petitioner, a high school principal employed by the Board of Education of the City School District of the City of Buffalo (“board”), seeks the removal of Ralph R. Hernandez (“Hernandez”) from office as a member of the board, and other relief.  The application must be denied.

On March 3, 2008, Hernandez sent a letter to me asking that I initiate an investigation into certain allegations of employee misconduct and/or criminal activity by employees at McKinley High School, where petitioner is employed as principal.  He attached an anonymous letter he had received which made numerous allegation of wrongdoing on the part of petitioner.  On March 12, 2008, the board’s president sent me a follow-up letter indicating that an investigation was underway within the district regarding the matters raised in the anonymous letter.

I responded by letter dated March 21, 2008, and indicated my approval of the in-district investigation.  However, I also indicated that with respect to allegations of improprieties relating to an English 11 Regents’ examination, the State Education Department would conduct its own investigation.

On April 16, 2008, the Department issued its report with respect to the English 11 examination.  Department staff concluded that there was no credible evidence that students had been provided with the examination questions in advance, and closed the matter.  On April 23, 2008, the district issued a media advisory with respect to a portion of its own investigation.  The district concluded that allegations regarding theft of services and improper hiring of relatives as paid substitutes at McKinley were unfounded: “Based on the investigations conducted and findings presented by the lead investigators, there will be no follow-up disciplinary action against Principal Barton or any other administrator, teacher, teacher aide, or clerical personnel assigned to McKinley High School.”

In late May, the district’s Special Independent Investigator issued his final report with respect to all other outstanding allegations, and found no actionable wrongdoing.

At the conclusion of all of these investigations, no disciplinary or other action was taken against petitioner.

Petitioner alleges that the March 3 and 12, 2008 letters to the Commissioner amounted to commencement of a disciplinary proceeding against her, and that her rights were violated because the disciplinary proceeding did not comply with Education Law §3020-a.  Petitioner alleges that Hernandez and the board exceeded their authority under Education Law §2554 by sending the March 3 and 12, 2008 letters to the Commissioner.  Further, petitioner alleges that Hernandez and other board members have made statements to the media which were critical of petitioner.

Petitioner seeks removal of Hernandez from the board, and requests a declaration that other board members have exceeded their authority under Education Law §2554.

Hernandez and the board generally deny any improper conduct, and point out that “no charges of any kind were lodged against Petitioner ....” They assert numerous affirmative defenses, including failure to state a claim, untimeliness, and lack of personal jurisdiction of Hernandez.

Petitioner commenced this appeal on July 30, 2008.  The two affidavits of service indicate that the notice of petition and petition were served only upon a clerical employee at the office of the board.

Commissioner’s regulation §275.8, which is made applicable to removal proceedings by Commissioner’s regulation §277.1, provides in pertinent part:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the commissioner.

The affidavits of service submitted herein state that service was made on the board and on Hernandez by delivery of the notice of petition, petition, and affidavit of petitioner to a clerical employee of the board.  Assuming that the clerical employee was properly designated by the board to accept service on its behalf, such service was adequate to gain jurisdiction over the board, and the board has raised no objection to service upon it.

Service is defective, however, with respect to the individual respondent Hernandez.  The affidavit of service with respect to Hernandez does not allege that any “diligent search” was made, and the affidavit does not indicate that any attempt was made to serve Hernandez prior to serving the clerical employee.  Even if a diligent search had been made, the regulation requires that service against an individual respondent be made at respondent’s residence between 6:00 a.m. and 9:00 p.m., which was not done.  No request for any alternative service was made to the Commissioner.  As a result, this matter must be dismissed as to Hernandez (Appeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660; Appeal of the New York City Department of Education, 46 id. 199, Decision No. 15,482, Appeal of Johnson, 45 id. 469, Decision No. 15,384).

The application also must be dismissed because the notice of petition is defective.  Commissioner’s regulation §277.1 requires that the notice of petition accompanying a removal application specifically advise the school officer that the application is being made for his or her removal from office, and prescribes the form of such notice.  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under §275.11(a).  A notice of petition which fails to contain the language required by §277.1(b) is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660; Appeal of Johnson, 45 id. 469, Decision No. 15,384; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

With respect to the board, petitioner requests that I: “Declare that the ongoing public appearances by members of the Board of Education are unbecoming the professional conduct of a Board of Education and/or members of a Board of Education in the State of New York and likewise exceed the authority granted to them by §2554 of the Education Law ....”

It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791; Appeal of Hillhouse, 41 id. 385, Decision No. 14,720).  The “relief” sought by petitioner is exclusively declaratory in nature, and petitioner makes no request that I prescribe or enjoin any conduct on the part of the board.  As a result, the appeal must be dismissed as to the board (seee.g.Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Appeal of Doro, 40 id. 281, Decision No. 14,480).

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

THE APPLICATION IS DENIED.

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