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Decision No. 16,567

 

 Appeal of BUFFIE RACE from action of the Board of Education of the Cambridge Central School District regarding an annual district election.

Decision No. 16,567

(October 15, 2013)

Girvin & Ferlazzo, P.C., attorneys for respondent, Jeffrey

D. Honeywell, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the actions of the Board of Education of the Cambridge Central School District (“respondent” or “board”) in connection with the Cambridge Central School District’s (“district”)2012 annual election and the election of Kerri Brown (“Brown”) as a member of the board. The appeal must be dismissed.

Petitioner alleges that, on March 27, 2012, Brown filed a nominating petition for a seat on the district’s board on which she listed an in-district address as her residence.1 On May 15, 2012, Brown was elected to the board for a term commencing July 1, 2012. The board elected Brown to be its president. At a board meeting on September 11, 2012, Brown was questioned as to whether she was qualified to run for a seat on the board at the May election. Specifically, she was asked whether she met the requirements of Education Law §2102 which states that “each member of a board of education ... shall have been a resident of the school district ... for at least one year prior to the election.” In response to the questions regarding her qualification, Brown affirmatively stated that she was qualified to hold the position of board member. This appeal ensued.

Petitioner requests that I investigate whether Brown met the residency requirements of Education Law §2102 when she was elected to the board. As evidence that Brown did not meet the residency requirements of Education Law §2102,

1 Respondent admits this claim in its answer. However, I note that in petitioner’s memorandum of law/reply, she claims that Brown submitted her nominating petition “with the residence left blank.” Neither party submitted a copy of the nominating petition as an exhibit to this appeal.

petitioner submits a lease that Brown entered into in Millbrook, New York from October 1, 2010 to September 30,2011 and documentation that Brown was employed by the Mahopac Central School District from August 30, 2010 to January 1, 2012.

Respondent admits that Brown was employed at Mahopac Central School District from August 30, 2010 to January 1,2012 and that she leased property in Millbrook, New York from October 1, 2010 to September 30, 2011, in order to be closer to her employment. However, respondent asserts that Brown was a resident of the district during the year preceding the May 15, 2012 election. Additionally, respondent contends that petitioner failed to join Brown asa necessary party, that petitioner did not meet her burden of proof and that the petition does not contain a clear and concise statement of petitioner’s claims. Respondent also asserts that the appeal is untimely and that petitioner lacks standing.

I must first address petitioner’s submissions. Respondent objects to my consideration of a document entitled “Memorandum of Law,” which was served by petitioner on November 7, 2012. In the verification of this document, however, petitioner indicates that it is a “verified reply.” To the extent petitioner’s submission is intended as a reply, I note that the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No.15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).To the extent petitioner’s submission is intended as a memorandum of law, I note that a memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal ofWright, 47 id. 202, Decision No. 15,668). Therefore, whileI have reviewed petitioner’s submission, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer or belated assertions or exhibits that are not part of the pleadings.

Respondent also objects to petitioner’s answer to respondent’s memorandum of law.2 A reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Kirschenbaum, 43 Ed Dept Rep 366, Decision No. 15,020; Appeal of T.M., 41 id. 443, Decision No. 14,740; Appeal of Muench, 38 id. 649,Decision No. 14,110) and may be accepted only with the prior approval of the Commissioner (8 NYCRR §276.4; Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658; Appeal of Dunshee, 44 id. 414, Decision No. 15,216). Petitioner’s submission fails to comply with §276.4 of the Commissioner’s regulations pertaining to memoranda of law, or with §276.5 pertaining to additional affidavits, exhibits and other supporting papers. Accordingly, I have not considered it.

Respondent also argues that the petition must be dismissed because it does not contain a clear and concise statement of petitioner’s claims. A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10). Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific actor acts complained of (id.). Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231,Decision No. 15,846; Application of Schenk, 47 id. 375,Decision No. 15,729). Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of Stepien,48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow,43 id. 394, Decision No. 15,029).

While dismissal on this basis is not undertaken lightly, particularly where a petitioner appears pro se, it is warranted in this instance. First, the petition is not clear as to whether petitioner seeks only to challenge respondent’s May 15, 2012 election and Brown’s alleged failure to meet the residency requirements of Education Law§2102, or whether she is directly applying to me for Brown’s removal pursuant to Education Law §306. The

2 I note that, in the verification, this document is referred to as a “verified reply.”

petition before me contains both the notice of petition required by §275.11 of the Commissioner’s regulations for appeals brought pursuant to Education Law §310 and the notice of petition required by §277.1(b) of the Commissioner’s regulations in applications for the removal of a school officer pursuant to Education Law §306.Although the petition includes a notice of removal of a school officer, the notice does not specifically name Brown or any other member of the board. In addition, while the petition generally alleges that Brown did not comply with Education Law §2102, Brown was not clearly named in the caption of the appeal and the prayer for relief requests only “investigation and potential action,” rather than any specific relief against Brown or the district.

Although the nature of petitioner’s claim is clear –that Brown did not meet the residency requirements of Education Law §2102 before being elected to a seat on the board – the uncertainty as to whether petitioner is appealing an action of the board and/or seeking the removal of Brown requires that I dismiss the appeal for failure to comply with §275.10 of the Commissioner’s regulations (see Appeal of Kroniser, 52 Ed Dept Rep, Decision No. 16,470).

Moreover, as noted above, the petition does not include a prayer or demand for any specific relief. Rather, the petition simply requests an “investigation and potential action ....” An appeal to the Commissioner is appellate in nature and does not provide for investigations(Appeal of Huffine, 48 Ed Dept Rep 386, Decision No.15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).Hence, the appeal must also be dismissed because the sole relief sought by petitioner is beyond the authority of the Commissioner to grant (see Appeal of Levendusky, 52 Ed Dept Rep, Decision No. 16,455; Appeals of Donahue, et al., 52id., Decision No. 16,431).

The appeal must also be dismissed for failure to join Brown 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 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).

Brown is a necessary party to this proceeding because the appeal involves her right to maintain her position on the board. Although the record indicates that Brown was personally served with a copy of the petition, she was not named in either of the two notices attached to the petition nor was she clearly named as a respondent in the caption of the petition, which reads as follows:

In the Matter of Buffie Race, from

Action of the Board of Education of the

Cambridge Central School District

regarding the residency requirement for

Kerri Brown.

The recitation in the caption that the matter pertains to the residency requirement for Kerri Brown is descriptive and does not provide Brown with sufficient notice that she should respond to the petition as a respondent. Accordingly, although petitioner served Brown, she is not clearly named as a respondent in the caption of the petition and the appeal must therefore be dismissed for failure to properly join her (see e.g., Appeal of Destino,52 Ed Dept Rep, Decision No. 16,461; Appeal of Foshee, 38id. 346, Decision No. 14,051).

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

THE APPEAL IS DISMISSED. END OF FILE