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Decision No. 16,052

Appeal of PAMELA GIBBINS and MICHAEL BYRNES from actions of the Eden Central School District, Andrew Breier and Patrick Howard regarding a school board election.

Decision No. 16,052

(April 8, 2010)

Hogan Willig, attorneys for petitioners, Steven Bachmann Dietz, Esq., of counsel

Hodgson Russ, L.L.P., attorneys for respondents, John J. Christopher, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal actions of the Eden Central School District (“district”) during its May 2009 school board election.  The appeal must be dismissed.

On May 19, 2009, the district conducted an election to fill two vacant positions on its board of education (“board”).  Two of the losing candidates, petitioners Gibbons and Byrnes, challenge the election of Andrew Breier and Patrick Howard (collectively referred to with the district as “respondents”).

Petitioners assert that respondents’ answer is late.  On July 14, 2009, my Office of Counsel granted respondents an extension to answer the petition until August 5, 2009.  According to the affidavit of service, the answer was served on petitioners’ counsel on August 4, 2009.  Accordingly, the answer was timely.

The appeal, however, must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner may excuse a deminimus delay in commencing an appeal (Appeal of Kathy and Shawn R., 39 Ed Dept Rep 152, Decision No. 14,199). The election was conducted on May 19, 2009, and the petition was served on July 1, 2009, more than 30 days later.  Petitioners explain that the appeal was late due to the need for an affidavit by Ms. Rose Hofner, a poll watcher, who was unavailable between June 9 and June 22, 2009.  I find this excuse without merit, as petitioners’ attorney provided written notice of petitioners’ intent to file an appeal on May 20, 2009, the day after the election.  Petitioners had three weeks prior to Ms. Hofner’s departure to secure her affidavit.  As such, I find the appeal to be untimely.  

In addition, the appeal must be dismissed for failure to properly join the district as a necessary party.  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  In this case, petitioners challenge the actions of the district in the conduct of the election and, thus, it is a necessary party. 

Petitioners purport to have joined the board and the school district.  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).  None of the affidavits of service provided by petitioners indicate that the petition was properly served on the board or the district by delivering a copy of the petition to the district clerk, to any member of the board, to the superintendent or to a person in the office of the superintendent who had been designated by the board to accept service.  Instead, the affidavits indicate that petitioners repeatedly attempted to make personal service and then attempted substituted service by mailing the petition.  This method of service is not authorized by §275.8(a) of the Commissioner’s regulations, and no request was made by petitioners to the Commissioner for alternate service (seeApplication of Barton, 48 Ed Dept Rep 189, Decision No. 15,832; Application of Ayers, 48 id. 350, Decision No. 15,883).  Therefore, the appeal must be dismissed for failure to join the district as a necessary party.

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

THE APPEAL IS DISMISSED.

END OF FILE.