Decision No. 13768

(May 14, 1997)

Carl W. Morgan, Esq., attorney for petitioner

Joseph V. Deren, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner, a candidate for school board membership in an annual election held on May 7, 1996, appeals from respondents' acceptance of the withdrawal of Henry W. Kozak's candidacy and the removal of Mr. Kozak's name from the ballot. The appeal must be dismissed.

Petitioner and Mr. Kozak were two of seven candidates nominated to run in the May election for a seat on the board of education. On April 29, 1996, respondents accepted Mr. Kozak's withdrawal of his candidacy and thereafter removed his name from the ballot used at the May 7, 1996 annual election. However, prior to Mr. Kozak's withdrawal, over 300 ballots listing Mr. Kozak among the candidates were distributed to absentee voters. Petitioner commenced this appeal on

May 1, 1996. On May 7, 1996, I denied petitioner's request for a stay of the annual election.

Petitioner contends that Mr. Kozak's withdrawal was ineffective in that it failed to comply with Education Law '2609 and Election Law '6-158 in that it lacked the acknowledgment required by such statutes. Petitioner also alleges that the removal of Mr. Kozak's name from the May 7, 1996 ballot violates the requirement in Education Law ''2613 and 2018-a(4) that absentee ballots are to conform as closely as possible to the manner in which the names of candidates appear on the voting machines used at the annual meeting. Petitioner contends that the use of the two separate ballots, which differ in the number of candidates and their location on the ballots, will result in the disenfranchising of the segment of voters that voted for Mr. Kozak by absentee ballot.

Respondents deny that their acceptance of Mr. Kozak's withdrawal of candidacy and their removal of his name from the annual meeting ballot violated the Education Law or the Election Law.

I find that the appeal must be dismissed for petitioner's failure to join Mr. Kozak as a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Williams, et al., 36 Ed Dept Rep 270). If petitioner were to prevail in this appeal, it would be necessary to restore Mr. Kozak's name to the election ballot. Since the record establishes that Mr. Kozak intended to withdraw his candidacy, he would be adversely affected by such decision.

The appeal must also be dismissed as moot. The Commissioner will determine only matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Ryan, et al., 35 Ed Dept Rep 188). The election has already occurred and it would not be possible to grant petitioner the relief he seeks.

THE APPEAL IS DISMISSED.

END OF FILE.

---