Application of ELIZABETH R. PASSER for the removal of Randall Barnes as the physical education and athletic director of the Mexico Central School District.

Decision No. 17,274

(December 6, 2017)

Ferrara Fiorenza, P.C., attorneys for respondent, Jeffrey M. Lewis, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks the removal of Randall Barnes (“Barnes”) as the physical education and athletic director of the Mexico Central School District (“respondent”).  The application must be denied.

Petitioner is a resident and taxpayer of the district.  The record indicates that the petitioner has served in the capacity of scorekeeper, timer, and scoreboard operator for the district’s lacrosse program for several years.  The petition contains various allegations of threats and misconduct by Barnes, as well as claims that Barnes lacks the requisite certification to hold the position of physical education director and/or athletic director under section 135.4 of the Commissioner’s regulations.  In the spring of 2016, petitioner expressed concerns about Barnes’ actions and his qualifications and requested his removal, by email to the district superintendent and also expressed her concerns at a board of education meeting.  This application ensued.  Petitioner’s request for interim relief was denied on May 24, 2016.

Petitioner asserts that Barnes lacks the requisite certification to hold the position of physical education and/or athletic director and should therefore be removed from his current position.  Petitioner further contends that Barnes has undertaken various acts that demonstrate willful misconduct and neglect of duty.  Petitioner also requests that a properly certified individual be appointed to the position of athletic director for the district.

Respondent denies petitioner’s claims and raise numerous procedural objections.  Respondent claims that the application is untimely, that petitioner lacks standing, and that the Commissioner lacks the authority to grant the relief requested as Barnes is an employee, not an officer subject to removal under Education Law §306.  Additionally, respondent contends that, to the extent petitioner seeks the removal of Barnes, the application must be dismissed for defective notice.  Finally, respondent contends that the application must be dismissed for failure to join a necessary party, failure to state a claim upon which relief may be granted, and for failure to set forth a clear and concise statement of petitioner’s claim.

To the extent petitioner seeks the removal of Barnes, I lack jurisdiction to do so.  Education Law §306 authorizes the Commissioner to remove school officers under appropriate circumstances.  For purposes of §306, "school officers" include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or "other school officer[s]."  An athletic director, however, is a school district employee, not a school officer, and is thus not subject to removal under Education Law §306 (Appeal of Gonzalez, 48 Ed Dept Rep 415, Decision No. 15,900; Appeal of Ferguson, 32 id. 494, Decision No. 12,897).  Accordingly, petitioner's Education Law §306 application must be denied for failure to state a claim upon which relief can be granted.

Even if Barnes were a school officer subject to my jurisdiction under Education Law §306, the defective notice of petition would warrant denial of the application.  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under 8 NCYRR §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 regulation is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Application of Carrion, 50 id. 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 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253; Application of Knapp, 41 id. 41, Decision No. 14,608).

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

THE APPLICATION IS DENIED.

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