Application of a STUDENT WITH A DISABILITY, by his parent, for the removal of Michael Radday as Superintendent of the Westhampton Beach Union Free School District.[1]

Decision No. 17,453

(July 16, 2018)

Kevin A. Seaman, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner seeks the removal of Michael Radday (“Superintendent”) as superintendent of the Westhampton Beach Union Free School District (“respondent”).  The application must be denied.

Petitioner has initiated three prior proceedings pursuant to Education Law §306 and §310 (Application of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,452; Appeal of a Student with a Disability, 57 id., Decision No. 17,368; Appeal of a Student with a Disability, 57 id., Decision No. 17,367) as well as numerous decisions by impartial hearing officers and State Review Officers arising from due process complaints related to his child (“the student”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law.

Petitioner resides in the Remsenburg-Speonk Union Free School District (“Remsenburg-Speonk”).  Remsenburg-Speonk and respondent are parties to a nonresident tuition contract pursuant to Education Law §2040 wherein respondent agrees to educate Remsenburg-Speonk students in grades seven to twelve to the same extent that respondent educates students in its own district.  Petitioner alleges that the superintendent illegally prevented the student from enrolling in respondent’s district for the 2015-2016 and 2016-2017 school years.  More specifically, petitioner alleges that the superintendent refused petitioner’s request to enroll the student in respondent’s district, thereby denying him a free and appropriate public education (“FAPE”).  Petitioner alleges that Radday was legally required to enroll the student and convene a meeting of respondent’s committee on special education (“CSE”) so that an individualized education program (“IEP”) could be developed for the student.  Petitioner asserts that Radday’s actions constitute wilful misconduct and a neglect of duty.  In support of his claims, petitioner refers to testimony given by the superintendent in an impartial hearing pursuant to the IDEA and Article 89 of the Education Law.  Petitioner requests removal of the superintendent.

Respondent argues that the application must be denied for failure to join a necessary party because petitioner did not name the superintendent in the caption of the application or serve him with a copy of the application.  Respondent further argues that the application is untimely; that petitioner lacks standing because he is not a resident of respondent’s district, and that petitioner fails to meet his burden of proving that the superintendent should be removed in accordance with Education Law §306.  Respondent also argues that the Commissioner lacks jurisdiction over petitioner’s claims, which concern special education placement and have been raised and adjudicated in administrative and judicial fora.

The application must be dismissed for failure to join the superintendent, a necessary party.  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

As noted above, petitioner only named the Westhampton Beach Union Free School District in the caption of the application.  Petitioner’s failure to clearly name the superintendent in the caption and thereby provide notice that he needed to respond to the application or face removal is a fatal flaw warranting denial of the application (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,387; Appeal of Hadden, 57 id., Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).  Moreover, petitioner failed to personally serve the superintendent with a copy of the application; petitioner’s affidavit of service indicates that he attempted to serve respondent by “delivering” the application “to the [d]istrict [o]ffice.”  Therefore, petitioner has failed to personally serve the superintendent, further warranting denial of the application (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,387; see Appeal of Lilly, et al., 42 id. 307, Decision No. 14,863).

Even assuming, arguendo, that the application had been appropriately commenced and petitioner had secured jurisdiction over the superintendent, the application would be denied as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of P.P., 57 Ed Dept Rep, Decision No. 17,321; Application of Kelty, 48 id. 476, Decision No. 15,921).

Here, petitioner alleges that the superintendent improperly excluded the student from the district and denied him a FAPE for the 2015-2016 and 2016-2017 school years, the latter of which ended over eight months prior to commencement of the instant proceeding.  In the application, petitioner asserts that he was delayed in commencing the instant application because he “was forced to commence a slew of tangential and alternate legal proceedings against the respondent, so as to ensure the provision of a [FAPE].”  I do not find this to be a valid justification for petitioner’s delay in bringing the instant application.  Therefore, the application is untimely and must also be denied on this basis.

Finally, while petitioner purports to also bring this appeal pursuant to Education Law §310, the only relief he seeks is removal of the superintendent.  Therefore, to the extent petitioner raises claims under Education Law §310, such claims must also be dismissed for failure to state a claim upon which relief may be granted.

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

THE APPLICATION IS DENIED.

END OF FILE