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Decision No. 12,713

Appeal of KAREN ROY from action of the Board of Education of the East Greenbush Central School District, Robert Savicki, as president of the board of education, and Louis Cotrona relating to an annual district election.

Decision No. 12,713

(June 16, 1992)

Duncan and O'Leary, Esqs., attorneys for petitioner, William V. O'Leary, Esq., of counsel

Mary M. Roach, Esq., attorney for respondents board of education and Savicki

Madeline Sheila Galvin, Esq., attorney for respondent Cotrona

SOBOL, Commissioner.--Petitioner appeals from certain actions taken by respondents board of education and Savicki in connection with the 1991 East Greenbush Central School District annual election and from the election of respondent Cotrona as a member of the board of education. The appeal must be sustained in part.

On May 1, 1991, respondent Cotrona filed nominating petitions for a seat on the Board of Education of the East Greenbush Central School District ("the district"). On the nominating petitions, respondent Cotrona listed his residence as 3 Luther Road, East Greenbush, located within the school district. On May 13, 1991, the school district clerk received information indicating that, in a deed executed before a notary public on September 17, 1990, respondent Cotrona listed his residence as 440 Taylor Court, Troy, New York, an address outside the district, and sold his East Greenbush home to his wife. Upon receipt of the information, school board president Robert Savicki wrote to respondent Cotrona requesting that he submit evidence to establish that he met the requirements of Education Law "2102 which requires that "each member of a board of education . . . shall have been a resident of the school district for at least one year prior to the election."

By letter dated May 20, 1991, respondent Cotrona replied to the board president's request and submitted the following documents:

(a) the 1990-91 property tax bill for the house located at 3 Luther Road, East Greenbush that respondent Cotrona had transferred to his wife by deed dated September 17, 1990;

(b) a photocopy of his driver's license, dated July 27, 1987;

(c) a copy of a dental insurance statement dated May 10, 1991;

(d) a copy of a deferred compensation statement dated some time after March 31, 1991;

(e) a motor vehicle registration card;

(f) an automobile insurance identification card dated April 7, 1991;

(g) a copy of a voter registration card dated September 24, 1986;

(h) copies of 2 blank, undated personal checks;

(i) a copy of a letter appointing him to the East Greenbush Parks Task Force in January 1991;

(j) an undated copy of his pay check;

(k) copies of mortgage papers completed by respondent Cotrona in connection with the purchase of a condominium at 112 Hampton Place located in North Greenbush, New York.

Apparently, the school board president requested that the board's counsel review the documents submitted by respondent Cotrona. Thereafter, in a letter dated May 21, 1991, the school board attorney advised respondent Savicki that respondent Cotrona was "probably a resident of the East Greenbush Central School District and satisfies the residency requirement of "2102 of the Education Law." Consequently, the matter of respondent Cotrona's residency was removed from the agenda of the May 22, 1991 school board meeting. On June 12, 1991, respondent Cotrona was elected to the East Greenbush Board of Education. This appeal ensued. In addition to the pleadings submitted in this case, petitioner and respondent Cotrona have submitted additional evidence pertaining to respondent Cotrona's residency during the year preceding the June 1991 election that has been accepted into the record.

Petitioner alleges that respondent Cotrona was not a resident of the district for some time before September 1990 until March 1991. Petitioner contends that, because respondent Cotrona was not a resident during that time, he did not meet the residency requirements under Education Law "2102 and, consequently, was ineligible to run for election to the board of education in June 1991. Petitioner further contends that respondents board of education and Savicki failed to address adequately the issue of respondent Cotrona's residence prior to the election. Finally, petitioner alleges that respondent Cotrona engaged in improper electioneering at the annual meeting in violation of Education Law "2031-a.

Respondent Cotrona concedes that, for personal reasons, he was absent from the district for a period of time during the year preceding the June 1991 election; however, he alleges that his absence was temporary, that he never intended to nor did he abandon his residence at 3 Luther Drive during the time in question. He contends, therefore, that because he was a resident of the district at all times, he complied with Education Law "2102 and was eligible to run for office in the 1991 school board election. Respondent Cotrona also denies that he engaged in any improper electioneering.

Respondents raise several procedural arguments that I will address before considering the merits of this appeal. Respondent board of education indicates in its answer that respondent Savicki's term of office ended on July 2, 1991, a fact that petitioner does not dispute. Insofar as respondent Savicki is no longer a member of the East Greenbush school board, the claims against him are moot, and the appeal is dismissed as to him (Appeal of DiMilia, 30 Ed Dept Rep 391; Appeal of Won, 29 id. 381).

Respondents also contend that the appeal must be dismissed as untimely. Section 275.16 of the Regulations of the Commissioner of Education provides that an appeal must be initiated within thirty days from the making of the decision or performance of the act complained of. Here, petitioner appeals from respondent board of education's failure to address the question of respondent Cotrona's residency when it removed the matter from the agenda of its May 22, 1991 meeting, and its subsequent inclusion of his name on the ballot as a candidate for election to the board of education. Respondent contends that the thirty day time period in which to initiate an appeal began to run on May 22, 1991. However, because petitioner was not aggrieved within the meaning of Education Law "310 until respondent Cotrona's name actually appeared on the ballot and he was elected to office on June 12, 1991, I find that the time to initiate this appeal commenced to run on June 12, 1991. Since the appeal was initiated on July 2, 1991, within thirty days of the election, I find the appeal timely.

The central issue in this appeal is whether respondent Cotrona was a resident of the East Greenbush Central School District for the entire year preceding the June 12, 1991 annual election. If he was not, he failed to satisfy the residency requirement set forth in Education Law "2102 and, therefore, was ineligible to run for a seat on the board of education in the June 12, 1991 election.

For purposes of election to public office, Election Law "1-104 defines "residence" as "that place where a person maintains a fixed permanent and principal home and to which he, wherever temporarily located, always intends to return" (emphasis added). There is no dispute that respondent Cotrona did not live continuously at the East Greenbush address during the entire year preceding the June 12, 1991 election. Whether he abandoned his Luther Drive residence at any point during the year and established residence elsewhere is a question of fact that must be decided by examining his actions and intent at that time (Matter of Holzberger, et al. v. Schoentag, 54 Misc 2d 547, 283 NYS2d 92 [1967]; Appeal of Lavelle, 28 Ed Dept Rep 189; Matter of Sprague, 20 id. 438; Matter of Smith, 14 id. 152).

The party alleging a change in residence bears the burden of establishing that change (Appeal of Bonfante-Ceruti, 31 Ed Dept Rep 38; Appeal of Tunstall, 27 id. 144; Matter of Smith, 14 Ed Dept Rep 152; Matter of Callahan,, 10 id. 66). After careful review of the record before me, I find that petitioner has met her burden and, therefore, conclude that respondent Cotrona was not a resident of the East Greenbush Central School District for the entire year preceding the June 12, 1991 election.

Although respondent Cotrona declares that, despite his absence from the district, he never changed his residence during the time in question and his absence was merely temporary, petitioner submits evidence establishing otherwise. Petitioner submits a deed dated September 17, 1990, as evidence that respondent Cotrona transferred ownership of his East Greenbush property to his wife. The deed lists respondent Cotrona's residence as 440 Taylor Court, Troy, New York, and respondent Cotrona admits that he transferred the property to his wife when they were separated. Although respondent Cotrona asserts that he transferred the property solely for tax purposes, he acknowledges that the transfer occurred while he was living apart from his wife and offers no explanation for listing his residence in Troy. Thus, respondent Cotrona provides no basis to conclude that the Troy address was not his residence at the time he executed the deed. Similarly, petitioner submits documentation of a vehicle registered to respondent Cotrona as early as June 1990 at the Taylor Court address. By way of explanation, respondent Cotrona indicates only that he purchased the vehicle for his son's use, but is again silent as to why he listed the Taylor Court address as his residence. In addition, subsequent to his transfer of the Luther Drive property, respondent Cotrona purchased a condominium located outside the school district at 112 Hampton Avenue in North Greenbush. Petitioner susbmits evidence that during the time in question respondent Cotrona changed both his address and telephone number to the 112 Hampton Avenue location. Although respondent Cotrona now claims that he purchased the Hampton Avenue property as an investment, petitioner submits an affidavit from an employee of the mortgage corporation that financed respondent Cotrona's purchase stating that respondent signed a Fannie Mae Form 1003 as part of his application, indicating that he was purchasing the property for use as his primary residence. By letter dated November 6, 1991, I directed respondent Cotrona, through my Office of Counsel, to submit the mortgage form referred to in the affidavit. Respondent Cotrona neither submitted the document nor denied the statement regarding its contents. Instead, he admits signing the form in question but argues that, in signing it, he relied on the mortgage corporation regarding its contents. Notably, a blank Form 1003 submitted by petitioner contains a statement above the signature line indicating that the applicant "understands that it is a federal crime . . . to knowingly make any false statements concerning any of the above facts. . . ." I also note that, although respondent Cotrona makes sworn statements that his separation from his wife was only temporary, in another part of the mortgage application which he offers into evidence, he checked a box indicating that he was "unmarried." Based on the inconsistencies between respondent Cotrona's representations in this appeal and his representation in the documentary evidence submitted, I find that he lacks credibility. I find no basis to reject the sworn statement submitted by petitioner supporting her contention that respondent Cotrona purchased the Hampton Place property for use as his primary residence. Further, absent any plausible explanation by respondent Cotrona regarding the evidence submitted by petitioner, I conclude that petitioner has met her burden establishing a change in respondent Cotrona's residence during the year preceding the June 1991 election.

To support his contention that he continued to reside at 3 Luther Drive for the entire year preceding the June 12, 1991 election, respondent Cotrona offers the same documentation that he submitted to the board of education in May 1991. In reviewing respondent Cotrona's documentation, I find that it neither refutes petitioner's evidence nor establishes that his absence from the district was intended to be temporary. The photocopy of his paycheck and blank personal checks listing the East Greenbush address are undated; the dates on the tax bill, driver's license, dental insurance statement, deferred compensation statement, automobile registration, insurance card and voter registration card he submits as evidence of his continued residence in East Greenbush are not within the time period in question. Thus, the documents submitted are of no probative value and do not preclude a finding that respondent Cotrona changed his residence within the year preceding the election.

Despite the evidence to the contrary, respondent Cotrona states in his papers before me that he never intended to abandon his residence in East Greenbush and establish a residence elsewhere. To be of probative value, a declaration of intent must be made at a time when the declarant had no interest in creating evidence, and before any controversy arises; otherwise the comments are properly deemed self-serving (Application of Scarfone, 197 Misc. 1007, 100 NYS2d 2 [1950]; In re Caligiuri, 197 Misc. 1000, 100 NYS2d 7 [1950]). As previously discussed, the statements of intent contained in respondent Cotrona's pleadings are inconsistent with the facts. Moreover, they are made after the fact, in the face of a challenge to his eligibility to run for election to the school board. After careful consideration, I find the evidence submitted by respondent Cotrona insufficient to establish that he continued to reside in the district during the time in question. After reviewing all of respondent's actions and his representations, I am unable to conclude that he intended his absence from the East Greenbush School District to be temporary during the time in question. Based on the totality of circumstances, I find that respondent Cotrona did not meet the residency requirement under Education Law "2102 and, therefore, was ineligible to run for a seat on the East Greenbush Board of Education in the June 1991 election.

With respect to petitioner's claim that respondent Cotrona engaged in improper electioneering, the record does not support petitioner's allegations and, therefore, that claim is dismissed.

Petitioner also objects to the fact that the school district's attorney represented respondent Cotrona in this appeal, contending that such representation is unauthorized and constitutes an improper use of public funds. I note that respondent Cotrona has retained separate counsel and has further offered to pay any expenses incurred by the board when it initially retained its attorney to represent him. Because petitioner has not established that district funds were actually expended on respondent Cotrona's behalf in this appeal, that claim is also dismissed.

In view of my finding that respondent Cotrona was ineligible to run for office as a member of the board of education in June 1991 and, consequently, must vacate that office, there is no need to address respondent's refusal to comply with my November 6, 1991 directive nor to determine whether such noncompliance requires the initiation of a proceeding pursuant to Education Law "306 for his removal from office.

It is understood, of course, that respondent Cotrona was a defacto member of the board of education until the date of this decision and that no actions of the board in which he participated as a defacto member are invalidated as a result of this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the position of respondent Louis Cotrona as member of the Board of Education of the East Greenbush Central School District is declared vacant for the reasons set forth above.

IT IS FURTHER ORDERED that the Board of Education of the East Greenbush Central School District immediately fill the vacancy resulting from this decision in accordance with the provisions of Education Law ""1709(17) or 2113.

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