Appeal of BYRON MCINTYRE and PATRCICA E. DEVIS from action of the Board of Education of the City School District of the City of Buffalo and President Mary Ruth Kapsiak; The New York State Department of Education and Commissioner  of Education; The Erie County Board of Elections and Commissioners Ralph M. Mohr and Dennis E. Ward regarding an election.

Decision No. 16,045

(March 31, 2010)

Anthony L. Pendergrass, Esq., attorney for petitioners

Alexander C. Collicchio, Esq., attorney for respondent Board of Education of the City School District of the City of Buffalo and President Mary Ruth Kapsiak

Cheryl A. Green and Kristin Klein Wheaton, Esqs., attorneys for respondents Erie County Board of Elections and Commissioners Ralph M. Mohr and Dennis E. Ward

STEINER, Commissioner.--Petitioners seek to invalidate the results of the May 5, 2009 election of three at-large members to the Board of Education of the City School District of the City of Buffalo (“board”) and to invalidate the certification of the election results on May 13, 2009 by the Erie County Board of Elections (“Board of Elections”).  The appeal must be dismissed.

Petitioners were two of nine candidates who submitted nominating petitions for three at-large board positions to be elected on May 5, 2009.  Prior to the election, the Board of Elections invalidated the nominating petition of candidate Fred Yellen (“Yellen”) and, on April 25, 2009, removed his name from the ballot, including absentee ballots distributed after that date.  Over 800 absentee ballots including Yellen’s name had previously been distributed.

Petitioner McIntyre claims that at the end of election day, without the tabulation of the absentee ballots, he received 3,743 votes, the third highest total, and was ahead of the fourth and fifth place finishers by 51 and 58 votes, respectively.  On May 11, 2009, all eight candidates were invited to the Board of Elections for the tabulation of the absentee ballots when they learned that 800 absentee ballots contained Yellen’s name.  After the final tabulation, including what petitioners deem the “defective” absentee ballots, Florence D. Johnson (“Johnson”) received the third highest vote total with 4,117 votes, McIntyre dropped to fifth position with a total of 4,028 votes, and petitioner Devis received 2,688 total votes and was in sixth position.  Yellen received 135 absentee votes; 42 of those ballots also contained votes for McIntyre, which were counted.  Although petitioners objected to the absentee ballots, the Board of Elections certified the election results on May 13, 2009.  This appeal ensued.  Petitioners’ request for interim relief was denied on June 23, 2009.

Petitioners contend that the Board of Elections negligently or intentionally breached its duties under the Education and Election Laws when it distributed to voters defective absentee ballots containing the name of a disqualified candidate.  They assert that the absentee ballots impermissibly differed from the ballots at the polling sites.  Petitioners assert that the inclusion of the defective absentee ballots diluted the votes cast for McIntyre and changed the outcome of the election.  They contend that the Board of Elections violated Election Law §7-122 and Article I, §1 and Article II, §§1 and 2 of the State Constitution.  They seek to have the May 5, 2009 election and the Board of Elections’ certification of the election results annulled.

Respondents assert that the appeal must be dismissed as untimely, for failure to join necessary parties, for improper service and for failure to state a claim upon which relief may be granted.  They claim that petitioners lack standing and also contend that the Commissioner lacks jurisdiction over alleged violations of the Election Law and constitutional issues.  They deny that there were any irregularities or improprieties in the conduct of the election and that any alleged irregularities affected the outcome of the election.  The board also contends that petitioners were informed on April 25, 2009 that absentee ballots containing Yellen’s name had been distributed to voters.  The Board of Elections contends in addition that it was not obligated to provide absentee ballots and that petitioners waived their rights by failing to bring this action prior to the election.

The appeal must be dismissed for lack of service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Petitioners’ affidavit of service states that the petition was served upon Brenda Steckmeyer.  Respondents assert that Ms. Steckmeyer is neither a district employee nor authorized to accept service.  When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed (Appeal of Baker, 47 Ed Dept Rep 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580).  In addition, there is no affidavit of service of the petition upon the Board of Elections or any of the individually named respondents.  Because petitioner failed to serve a copy of the petition on any of the respondents in accordance with §275.8 of the Commissioner’s regulations, the appeal must be dismissed.

The appeal must also be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption 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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Section 275.8(d) of the Commissioner’s regulations provides in pertinent part:  "If an appeal involves the validity of a school district meeting or election, ... 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).  Petitioners did not serve a copy of the petition on the successful candidates, Christopher L. Jacobs, Catherine Collins and Florence D. Johnson, nor did they name them as respondents.  The appeal must, therefore, be also dismissed for failure to join necessary parties.

Finally, to the extent petitioners allege violations of the Election Law and State constitution by the Board of Elections, an appeal to the Commissioner is not the appropriate forum.  Election Law §16-100 provides that “[t]he supreme court is vested with jurisdiction to summarily determine any question of law or fact arising as to any subject set forth in this article, which shall be construed liberally” (Election Law §16-100[1]; seealso Election Law §16-104; Education Law §2553[10]).  Furthermore, a novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of Seton Catholic Central High School, et al., 46 Ed Dept Rep 190, Decision No. 15,481).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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