Appeal of WILIAM KING MOSS III from action of the Board of Education of the Brentwood Union Free School District; Superintendent Richard Loeschner; trustees Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri regarding a personnel matter and application for the removal of Richard Loeschner as superintendent and Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri as trustees.

Decision No. 18,078

(January 27, 2022)

Ingerman Smith, L.L.P., attorneys for respondent, Michael D. Raniere, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Brentwood Union Free School District (“respondent board”); Richard Loeschner as superintendent; Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri as trustees (“trustees”) (collectively, “respondents”) concerning the hiring of Fediana Camilo, Michael Coan, Michael Healey and Maria Pineiro (“teachers”).  Petitioner additionally seeks removal of the superintendent and trustees from office.  The appeal must be dismissed, and the application must be denied. 

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  At a July 15, 2021 meeting, respondent board appointed the teachers to probationary teaching positions.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 7, 2021. 

Petitioner primarily argues that the teachers were hired improperly because each of their certifications expire before the end of their contract of service, in contravention of Education Law § 3011 (4).  For relief, petitioner requests removal of the trustees and superintendent as well as reversal of the teachers’ appointments.

Respondents contend that the petition must be dismissed for failure to effectuate proper service.  On the merits, respondents contend that the teachers hired in this matter were given probationary appointments in accordance with Education Law § 3012, and that the contracts contemplated by Education Law § 3011 were not required.[1]

The appeal must be dismissed, and the application must be denied 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).  If a named respondent cannot be found upon diligent search, the petition may be served by delivering and leaving it at the respondent’s residence with some person of suitable age and discretion, or as otherwise directed by the Commissioner (8 NYCRR 275.8 [a]). 

Petitioner’s affidavit of service reveals that the petition was not personally served on any of the individual respondents.  Rather, on August 14, 2021, the petition was either delivered to persons of suitable age and discretion or left at the door (with a copy later sent by mail).  Although section 275.8 (a) of the Commissioner’s regulations permits service of a petition on a person of suitable age and discretion at the respondent’s residence where the respondent cannot be found, there is no evidence that the process server made any prior attempts to effect service before leaving the petition with others.  As such, petitioner has failed to prove that he conducted a “diligent search” before resorting to serving papers on persons of suitable age and discretion (Appeal of Houdek, 47 Ed Dept Rep 415, Decision 15,740; Appeal of the Lawrence Teachers’ Association, 39 id. 119, Decision No. 14,190).  Similarly, petitioner’s delivering and mailing of a copy of the petition was invalid as petitioner did not seek or receive authorization to utilize an alternative method of service (Appeal of Lovinsky and Simpson, 57 Ed Dept Rep, Decision No. 17,422; Appeal of Boni, 41 id. 214, Decision No. 14,666; judgment granted dismissing petition to review sub nom. Boni, et al. v. Mills, et al., Sup. Ct., Albany Co., Special Term; Bradley, J.; January 7, 2003; Application of Grinnell, 37 id. 504, Decision No. 13,914).  Accordingly, the appeal must be dismissed, and the application must be denied for failure to effectuate personal service.

The superintendent and trustees have requested that I certify that they acted in good faith in accordance with Education Law § 3811 (1).  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1).  The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  Since there has been no finding that the superintendent or trustees acted in bad faith, I hereby certify for the purpose of Education Law § 3811 (1) that the superintendent and trustees acted in good faith.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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