Appeal of CHARLES REYNOLDS from action of the Board of Education of the Odessa-Montour Central School District and Carol Boyce, Superintendent, regarding a district election.

 

 

(March 27, 2003)

 

Sayles & Evans, attorneys for respondents, Conrad R. Wolan, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the election of two employees of the Schuyler-Chemung-Tioga Board of Cooperative Educational Services ("SCT-BOCES") to the Board of Education of the Odessa-Montour Central School District ("respondent board").  The appeal must be dismissed.

On May 21, 2002, Alice Learn and Debra Harrington, both employees of SCT-BOCES, were elected to respondent board.  Odessa-Montour Central School District is a component district of SCT-BOCES.  Petitioner contends that BOCES employees are prohibited from serving on the board of a component district by Education Law "1950(9).  Petitioner argues that there will be conflicts of interests if these two board members are permitted to vote on matters pertaining to SCT-BOCES.  Petitioner requests that I void the May 21, 2002 election and direct a new election.

Respondent contends that petitioner failed to name and serve Ms. Harrington and that there is no statutory bar to BOCES employees serving on a board of education of a component district.

The petition must be dismissed for failure to join 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 Monahan, 42 Ed Dept Rep __, Decision No. 14,824; Appeal of Holliday, 40 id. 534, Decision No. 14,549; Appeal of Heller, 38 id. 335, Decision No. 14,048).  Joinder requires that an individual be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Monahan, supra; Appeal of Calhoun, 38 Ed Dept Rep 542, Decision No. 14,089; Appeal of Heller, supra).  Petitioner is challenging the election of Ms. Learn and Ms. Harrington, yet he failed to name Ms. Harrington in the caption or to individually serve her with the notice of petition and petition.  Therefore, the appeal must be dismissed.

The appeal must also be dismissed on the merits.  In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which he seeks relief and a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of Reynolds, 42 Ed Dept Rep __, Decision No. 14,834; Appeal of Jones and Frank-Jones, 42 id. __, Decision No. 14,797).  Petitioner has failed to meet this burden.  His reliance on Education Law "1950(9) is misplaced.  Education Law "1950(9) states that "no person shall be eligible to be elected to the office of member of a board of cooperative educational services who is an employee of a school district in the supervisory district."  Nothing in that statute prohibits a BOCES employee from serving as a school board member of a component district (Appeal of Todd, 19 Ed Dept Rep 277, Decision No. 10,129).  Nor has petitioner demonstrated any conflicts of interest prohibited by General Municipal Law Article 18.  His assertion that conflicts of interests will arise if Ms. Learn and Ms. Harrington vote on matters pertaining to BOCES programs and services is speculative.

Although there is no statutory prohibition against their dual roles, I encourage Ms. Learn and Ms. Harrington to recuse themselves whenever a conflict is present and to consult respondent board"s code of ethics.

 

THE APPEAL IS DISMISSED.

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