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Defective service bars proceeding with an appeal to the Commissioner of Education

Defective service bars proceeding with an appeal to the Commissioner of Education
Application of Lisa A. Kelty for the removal of James Parla as Superintendent of the Island Trees Union Free School District. Commissioner of Education Decision No. 15,946

This decision by Carole Huxley, the interim Commissioner of Education, addresses a situation where the failure to correctly resolve a procedural matter proved fatal to processing the appeal submitted by Lisa A. Kelty asking the Commissioner to remove James Parla from his position of Superintendent of the Island Trees Union Free School District.

Kelty?s complaint: Between January 25, 2008 and June 10, 2008, the district made an unauthorized payment of $32,741.55 to an environmental consulting company and that there is no public record of such payment in the minutes of the board of education.

However, the Commissioner dismissed Kelty?s appeal ?for lack of jurisdiction based upon defective service of process.?

Kelty?s processes server, Brian M. Kelty, in a sworn affidavit said that he made personal service of the ?notice of petition and petition? on Superintendent James Parla on November 19, 2008.

Parla, on the other hand, disputed that he was served with the notice of petition and petition in a detailed affidavit in which he stated that he was only handed an envelope containing documents and exhibits, but that neither the notice of petition nor petition was in the envelope.

Instead of submitting ?a further affidavit of the process server,? Kelty attempted to rebut the claim in Parla?s affidavit that the envelope he received from the process service did not contain the notice of petition and petition by merely stating the Superintendent?s contention of defective service was untrue.

The Commissioner said that this statement, made by Kelty rather than by the process server, ?is obviously made without personal knowledge.?

The Commissioner explained that the affidavit of a process server attesting to delivery of a paper ordinary constitutes a rebuttable presumption, i.e., prima facie evidence, of proper service. However, where there is a sworn denial by the person so served of his or her receipt of the petition and notice of petition, the prima facie evidence of proper service is rebutted and proper service resulting in jurisdiction must be established by further evidence.

The burden of proving service and the resulting existence of jurisdiction is always on the party asserting it. In this instance Kelty failed to carry her burden of proof, which had been shifted to her as a result of the statements concerning defective service set out in Parla's affidavit.

The Commissioner ruled that ?The conclusory statement by [Kelty] in her reply, which is not based upon personal knowledge, is not sufficient to overcome [Parla?s] detailed denial of proper service.

Accordingly, the Commissioner found that ?jurisdiction has not been established? and he dismissed Kelty?s appeal.

The Commissioner?s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume49/d15946.htm

Full post as published by New York Public Personnel Law on August 03, 2009 (boomark / email).