Appeal of YVETTE LINDSAY-BRIDGES on behalf of her children JOSHUA and EVAN, from action of the Board of Education of the Lindenhurst Union Free School District regarding an attendance policy. 

Decision No. 17,510

(September 25, 2018)

Guercio & Guercio, attorneys for respondent, Eric Levine, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the decision of the Board of Education of the Lindenhurst Union Free School District ("respondent") to mark her children, Joshua and Evan (the “students”), tardy/unexcused.  The appeal must be dismissed.

At all times relevant to this appeal, the students attended respondent’s Albany Avenue Elementary School (“the school”).  Respondent’s attendance policy includes a provision which states that “[l]ateness and early departure times will be established at all elementary schools.”  According to an affidavit from the school’s principal (“principal”), the district “follows a protocol for recording attendance for students who arrive on-time to school but subsequently leave within one (1) hour of the start of the school day.”[1]  Specifically, if a student leaves within one hour of the start of the school day and does not return to school later that day, the student is marked absent, either excused or unexcused depending on the circumstances.  If a student leaves within one hour of the start of the school day and does return to school later that day, the student is marked tardy, either excused or unexcused depending on the circumstances.

On April 11, 12, May 2, and 3, 2018, petitioner signed the students out of school at approximately 9:30 a.m. and returned them to school between 11:00 a.m. and 11:30 a.m. in order to opt her children out of participation in required State assessments.  In accordance with the above-described protocol, the students’ attendance on those dates was marked as “TU,” or tardy, unexcused.

According to petitioner, “[w]hen [she] received knowledge of this, not by the school, [she] contacted school officials.”[2]  Petitioner avers that she “received no reply to matters of this petition.”  This appeal ensued. Petitioner’s request for interim relief was denied on June 14, 2018.  

Petitioner argues that “this practice was unjustly performed without notice or merit” and that “this measure is a punish [sic] the children whose parents had utilized the option out of the past ELA/MATH State testing.”  As relief, petitioner requests that the students’ attendance records for April 11, 12, May 2 and 3, 2018 be amended from tardy/unexcused to present.  Petitioner also requests that respondent “remit correspondence as requested regarding matter or decision they verbal state yet reluctant to provide written documentation [sic]” and that “an audit be performed on all [district] [a]ttendance records.” 

Respondent argues that, to the extent petitioner challenges attendance determinations made on April 11 and 12, 2018, the appeal must be dismissed as untimely.  Respondent also argues that the appeal must be dismissed for improper service and for failure to state a claim upon which relief may be granted.

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]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

The affidavit of service filed with the petition indicates that the petition was served on the secretary of the superintendent (“secretary”) and that the deponent knew that the person so served was duly authorized to accept service.  Respondent submits an affidavit from the secretary in which she indicates that, in addition to her position as secretary to the superintendent, she also holds the position of alternate district clerk.  She also indicates that in her capacity as secretary, she is not authorized to accept service; however, in her capacity as alternate district clerk, which only occurs in the absence of the district clerk, she is authorized to accept service.[3]  The secretary’s affidavit avers that on May 25, 2018, an individual came to the superintendent’s office and stated; “I have this envelope for you, can you sign this receipt?” The envelope contained the petition in the instant matter.  The secretary also avers that “at no time did [the individual] make any statements or allusions to the contents of the envelope, nor did he state he was delivering legal papers of any kind ....”  Finally, she states that if the individual had informed her that he was serving legal papers she would have advised him that she was not authorized to accept service and directed him to the district clerk.  She asserts that the district clerk was present on March 25, 2018, and the district clerk confirms in an affidavit that she was present at work and not absent for any portion of that day.  Petitioner submits no reply or other evidence to refute respondent’s claim of improper service.  Therefore, on this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations and the appeal must be dismissed.

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

THE APPEAL IS DISMISSED.

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