Appeal of NIEL A. YERDON from action of the Board of Education of the Fort Plain Central School District regarding an election.

Decision No. 16,471

(April 26, 2013)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel  

KING, JR., Commissioner.--Petitioner appeals actions of the Board of Education of the Fort Plain Central School District (“board” or “respondent”) regarding the conduct of the district’s May 15, 2012 school board election. The appeal must be dismissed.

On May 15, 2012, the district held its election in which four candidates ran to fill three board vacancies: two seats for three year terms and one seat for the remainder of the term. Mary Beth Hudyncia and Jami Stevens were elected to fill the two full term vacancies, and Louis R. Capece was elected to fill the remaining term of the third vacant seat. This appeal ensued.

Initially, I note that the petition is vague and unclear, setting forth a general request for a determination as to whether respondent adhered to Education Law §§2012, 2014, 2108, 2019 and 2019-a. Petitioner, whois not represented by counsel, sets forth no specific allegations of non-compliance with those statutes by respondent. However, affording the petition a liberal interpretation, it appears that petitioner is essentially questioning respondent’s compliance with provisions of the Education Law pertaining to the board candidates’ nominating petitions.

Petitioner also asks for a determination whether “the use of district resources for internal distribution/signatures for [Ms. Hudyncia and Ms. Stevens’ nominating petitions] violates NYSED (sic) laws.” He, thereafter, merely lists citations to decisional law, such as Phillips v. Mauer, et al., 67 NY2d 672, which prohibits a board of education from using district resources to exhort the electorate. On the basis of the aforesaid allegations, petitioner seeks to overturn the results of the May 15, 2012 election.

Respondent contends that the appeal must be dismissed for failure to join necessary parties. Respondent also maintains that the petition fails to state a claim and that petitioner has not established any basis for overturning the results of the election. Finally, respondent asserts that no improper use of district resources occurred.

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)(see Appeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796;Appeal of Duffy, 47 id. 86, Decision No. 15,634). Here, the winning candidates were neither named as respondents nor personally served with a copy of the notice of petition or petition. Petitioner only served Rebecca Smith, apparently a secretary authorized to accept service for the district. Because a decision in petitioner’s favor would clearly affect the rights of the winning candidates, petitioner’s failure to individually name them as respondents and serve them with a notice of petition and petition requires dismissal of the appeal.

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

THE APPEAL IS DISMISSED.

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