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Decision No. 13,415

Appeal of CHAIM HOCHHAUSER, ISRAEL WEISS, JOSEPH WALDMAN, JACOB LANDAU, JACOB SAMET and BEN ZION FRIEDMAN from action of the Board of Education of the Kiryas Joel Village Union Free School District and the Board of Trustees of the Village of Kiryas Joel regarding the formation of a school district.

Decision No. 13,415

(May 12, 1995)

Raymond G. Kuntz, III, Esq., attorney for petitioners

George Shebitz, Esq., attorney for respondent Kiryas Joel Village Union Free School District

Jacobowitz and Gubits, Esq., attorney for respondent Kiryas Joel Village, J. Benjamin Gailey, Esq., of counsel

SOBOL, Commissioner.--Petitioners challenge the conduct of a referendum creating the Kiryas Joel Village Union Free School District and the election of candidates to the board of education of that new school district. The appeal must be dismissed.

Chapter 748 of the Laws of 1989 established the Kiryas Joel Village Union Free School District. On June 27, 1994, the United States Supreme Court declared Chapter 748 unconstitutional. On June 30, 1994, the New York State Legislature repealed Chapter 748 and abolished the Kiryas Joel Village Union Free School District. Also on June 30, 1994, the Legislature amended Education Law '1504 to authorize, interalia, the creation of new school districts by villages that meet certain conditions set forth in the statute.

On July 12, 1994, the Board of Trustees of the Village of Kiryas Joel ("the trustees") adopted two propositions to be placed before the voters. Proposition one was to establish a union free school district in the Village of Kiryas Joel. Proposition two provided that, if proposition one passed, the voters could then establish the terms for the positions on the board of education of the new school district. On July 25, 1994, the Village of Kiryas Joel held a referendum. Proposition one passed by a vote of 2887 to 351. Proposition two passed by a vote of 2798 to 240. Individuals were also elected to fill the positions on the newly created board. This appeal followed.

Petitioners contend that respondents engaged in a course of conduct designed to keep individuals who were opposed to the propositions from voting. They further contend that requisite notice was not given regarding the referendum and the election of school board members. Petitioners further assert that respondent denied petitioner Waldman his right to run for the school board. Respondent school district asserts that it complied with applicable law and regulations regarding the referendum. Respondent school district also contends that the appeal must be dismissed for failure to join necessary parties. Respondent school district further argues that petitioners have not met their burden of proof and that the outcome of the election would not have been affected by the alleged irregularities. Respondents also assert that the Commissioner has no jurisdiction over the conduct of the election.

As a threshold matter, I find meritless respondent's argument that the Commissioner lacks jurisdiction to review the referendum and school district election. Education Law ''310 and 306 vest the Commissioner of Education with jurisdiction over school districts, schools, school officers, school authorities, school employees and students. Education Law ''310(7) and 2037 vest the Commissioner of Education with authority over all school district elections. Moreover, Education Law '1504, the statute authorizing the creation of a new school district, requires that any elections be held in accordance with Education Law '1523. This section governs elections establishing union free school districts. The Commissioner clearly has statutory authority to review elections held in accordance with Education Law '1523 (Education Law ''310(7), 2037). Since the July 25, 1994 vote involved the election of members to a board of education and the establishment of a new school district, I find that the Commissioner has the requisite authority to review claims related to the election process.

When an individual's rights may be affected by a determination in an appeal brought pursuant to Education Law '310, that individual must be joined as a party (Appeal of Smith, 34 Ed Dept Rep 346; Appeal of Cardinal, 34 id. 76; Appeal of Sanfilippo, 33 id. 500). Respondents' correctly assert that the appeal must be dismissed for failure to join necessary parties. Section 275.8(d) of the Commissioner's regulations provides:

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 copy of the petition does not join an individual as a respondent City of Mount Vernon v. Best Development Co., 268 NY 327). The party must be named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition to allow the named party to defend his or her position (Application to Reopen Appeal of Reese, et al., 34 Ed Dept Rep __, Decision No. 13377, dated March 22, 1995).

In this case, granting the relief requested by petitioner would most certainly affect the individuals elected to the board of education of the newly created district. Yet, petitioners have failed to name those individuals. Nor did petitioners name the Board of Education of the Monroe-Woodbury Central School District as a respondent, even though that board voted to alter the boundaries of its district to create the Kiryas Joel District. Granting the relief petitioners request would impact on the Monroe-Woodbury District by requiring it to reconfigure its boundaries and resources. Additionally, petitioners failed to name the District Superintendent of the Orange-Ulster Counties Board of Cooperative Educational Services ("BOCES") who ordered the alteration of the boundaries of the Monroe-Woodbury District. The relief requested by petitioners would nullify the district superintendent's order. Accordingly, because petitioners failed to name as a respondent the winning candidates they seek to unseat, the Monroe-Woodbury District and the district superintendent of the Orange-Ulster BOCES, the appeal must be dismissed for failure to join necessary parties (Appeal of Damilatis, 33 Ed Dept Rep 465; Appeal of Williams, 33 id. 318; Appeal of Uciechowski, 32 id. 511).

With respect to the merits, petitioner Waldman's assertion that he was denied an opportunity to submit a nominating petition for election to the Board of Education of the Kiryas Joel District must also be rejected. The record indicates that petitioner Waldman unsuccessfully sought in State Supreme Court the same relief he seeks here. Having litigated his claim elsewhere and having received an adverse determination, the doctrine of res judicata bars petitioner from relitigating the same issue in this proceeding (Appeal of Friedman, 32 Ed Dept Rep 447; Appeal of Tobin, 30 id. 315).

In view of the foregoing, I need not decide petitioners' remaining claims.

THE APPEAL IS DISMISSED.

END OF FILE