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Decision No. 13,377

Application to reopen the appeal of HOWARD REESE JR., RITA SICKLES, HUGH CASPER, DEBRA RICHARDS, MARY REITER, VICKY SCHWEIZER and FORREST HOLROYD from action of the Board of Education of the Duanesburg Central School District regarding a school district election.

Decision No. 13,377

(March 22, 1995)

Paul M. Callahan, Esq., attorney for respondent

SOBOL, Commissioner.--This is an application to reopen my decision in Appeal of Reese, et al., (34 Ed Dept Rep 187), in which I dismissed a petition challenging a school district election. The application must be denied.

In the original appeal, petitioners challenged the election of Richard Hoffmann by one vote to the Board of Education of the Duanesburg Central School District. Petitioners claimed that the misspelling of candidate Hoffmann's name on his nominating petition resulted in voter confusion about the identity of the candidate. Petitioners also asserted that voters did not have enough time to vote and that respondent failed to select ballot positions within the time limit mandated by Education Law '2032. I dismissed the appeal for non-joinder of a necessary party and petitioners' failure to prove that any irregularities affected the outcome of the election.

Petitioners have not demonstrated sufficient grounds to warrant reopening. Section 276.8 of the Regulations of the Commissioner of Education provides that such applications are addressed solely to the discretion of the Commissioner, and will not be granted in the absence of a showing that a decision was rendered under a misapprehension of fact or that there is new and material evidence which was not available at the time the original decision was made.

Petitioners allege that my decision should be reopened because it was rendered under a misapprehension of fact. Specifically, they assert that I misunderstood the relief they requested, which was not to invalidate the election, but to order a run-off election between the winning candidate Richard Hoffmann and another candidate. However, this relief cannot be provided because there can be no run-off election between a winning candidate and a losing candidate if I do not first unseat the winning candidate. I cannot unseat the winning candidate, Richard Hoffmann, unless I invalidate the May 25, 1994 election. As the original decision states, there is no basis for invalidating the May 25, 1994 election.

Additionally, petitioners assert there was no procedural violation because all necessary individuals were served with the original petition. Commissioner's regulation '275.8(d) states in pertinent part:

Disputed elections. If an appeal involves the validity of a school district meeting or election, or the eligibility of a district officer, a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent....(emphasis added)

Mere service of a petition does not join an individual as a respondent (City of Mount Vernon v. Best Development Co., et al., 268 NY 327). The individual must also be named as a respondent in the caption of the petition to inform that person that he or she should enter a defense. Accordingly, because petitioners failed to name in their appeal the winning candidate they sought to unseat, the appeal was properly dismissed for failure to join a necessary party (Appeal of Damilatis, 33 Ed Dept Rep 465; Appeal of Williams, 33 id. 318; Appeal of Uciechowski, 32 id. 511).

Moreover, an application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Impellizzeri, et al., 32 Ed Dept Rep 295; Application of Ferris, 30 id. 444; Application of Burke, 28 id. 205). Here, petitioners attempt to reargue the merits of the original decision. They assert that because I found respondent committed a technical violation of Education Law '2032(2)(b), there is sufficient probability that the outcome of the election would have been different but for this and other irregularities they asserted in their original petition. I considered this issue, and the other irregularities petitioners are now reasserting, in the original decision (Appeal of Reese, et al., supra). Accordingly, I find this application alleges no misapprehension as to the facts or new evidence upon which I should overturn my decision.

THE APPLICATION TO REOPEN IS DENIED.

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