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Decision No. 16,325

Appeal of BRIAN M. KELTY from action of the Board of Education of the Island Trees Union Free School District regarding an election and application for the removal of district clerk Concetta Carr.

Decision No. 16,325

(February 2, 2012)

Guercio & Guercio, LLP, attorneys for respondent, Randy Glasser, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals actions of the Board of Education of the Island Trees Union Free School District (“board” or “respondent”) regarding the conduct of the district’s May 17, 2011 school board election.  Petitioner also seeks the removal of district clerk Concetta Carr (“district clerk” or “Carr”).  The appeal must be dismissed and the application denied.

On May 17, 2011, the district held its annual school board election and budget vote at which Carr served as chairperson of the election inspectors.  Petitioner was one of nine candidates for four trustee positions on the board.  Each seat constituted a separate vacancy to be filled.  At the close of the polls, Carr reported vote tallies indicating that petitioner had lost to candidate Patricia Mahon by 424 votes.

By email dated May 18, 2011, petitioner contacted Carr and informed her that he was contesting the election results and asked for instructions for doing so.  Carr subsequently advised petitioner of his right to commence an appeal pursuant to §310 of the Education Law and contacted the Nassau County Board of Elections to request that the voting machines be “impounded.”  This appeal ensued.

Petitioner asserts numerous irregularities in the conduct of the election and contends that any discrepancy in the recording of votes was due to Carr’s incompetence and/or the mechanical failure of the voting machines.  Petitioner contends that the impartiality of the district clerk and several trustees on respondent’s board should be questioned because their names appear on candidate George Storm’s petition along with an April 13, 2011 date, the same date as a board of education meeting.  Petitioner asserts that this constitutes improper electioneering and that the district clerk failed to record the petition signing in the board’s meeting minutes.  Petitioner seeks both annulment of the election results and Carr’s removal.

Respondent maintains that the petition must be dismissed for failure to join necessary parties, including certain trustees who would be affected if the election results were annulled.  Respondent asserts that any irregularity that may have occurred did not affect the outcome of the election and does not warrant annulment of the results.  Respondent claims that the district clerk fulfilled her duties as election inspector properly and that no improper electioneering took place.  Finally, respondent argues that petitioner failed to meet his burden of proof and that many of his allegations are based solely on speculation and unsubstantiated hearsay.

The appeal must 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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)(seeAppeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796; Appeal of Duffy, 47 id. 86, Decision No. 15,634).

Because the annulment of the election results would affect the four winning candidates, they are necessary parties to the appeal (Appeal of Greene and Moss, 50 Ed Dept Rep, Decision No. 16,210; Appeal of Watson, 50 id., Decision No. 16,181).  However, these individuals are not named as respondents in the caption of the petition and the record contains no evidence that they were served with a copy of the petition and notice of petition.  Petitioner did not submit a reply or any other evidence to the contrary.  Accordingly, the appeal must be dismissed to the extent petitioner seeks annulment of the results of the May 17, 2011 election.

Additionally, although Carr was served with the petition in her capacity as respondent’s district clerk, she was not named as a respondent in either the notice of petition or the petition itself.  As noted above, mere service of the petition does not accomplish joinder of the respondent.  Moreover, the notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832).

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE.