Decision No. 16,759
Appeal of DONNELL COOKE, CATHERINE ANTOINE, DIAHANNE JONES and WILLIAM HOLMES from action of Lisa Brennan, as District Clerk of the Deer Park Union Free School District, Al Centamore, Donna Gulli Grunseich and Kristin Rosales regarding a school district election and proposition vote.
Decision No. 16,759
(May 15, 2015)
Law Offices of J. Stewart Moore, P.C., attorneys for petitioners, J. Stewart Moore, Esq., of counsel
Frazer & Feldman, LLP, attorneys for respondents, Laura A. Ferrugiari, Esq., of counsel
BERLIN, Acting Commissioner.--Petitioners challenge the results of the annual school district election and vote on a proposition held on May 20, 2014, in the Deer Park Union Free School District (“district”). The appeal must be dismissed.
At the May 20, 2014 election, district voters, inter alia, elected Al Centamore (“Centamore”), Donna Gulli Grunseich (“Grunseich”), and Kristine Rosales (“Rosales”) to fill three vacancies on the Board of Education of the Deer Park Union Free School District (“board”) and approved (by a vote of 1,241 to 667) a proposition authorizing the board to sell an elementary school, the Washington School, that had not been used as a school building since approximately 1989, for $5,000,000. This appeal ensued. In their appeal, petitioners name the district clerk and Centamore, Grunseich, and Rosales, the successful board candidates, as respondents. On July 14, 2014, petitioners’ request for interim relief was denied.
Petitioners claim that there is “a basis to believe that” the district engaged in irregularities during the May 20, 2014 vote, which call into question the integrity of the results. Petitioners request “an examination of the ... election” and the board of education policies for conducting elections. As relief, they ask that the results of the election and the vote on the sale of the Washington School be set aside.
Respondents contend that the appeal must be dismissed as untimely, as well as for improper service and failure to join a necessary party. Respondents deny that any irregularity occurred regarding the May 20, 2014 vote and assert that petitioners have failed to sustain their burden of proving a clear legal right to the relief requested.
I will first address several procedural matters. Section 275.8(d) of the Commissioner’s regulations requires that,
If an appeal involves the validity of a school district meeting or election, ... a copy of the petition must be served upon the ... board of education ... and upon each person whose right to hold office is disputed and such person must be joined as a respondent.
With respect to respondents’ assertions regarding improper service of the petition, §275.8(a) of the Commissioner’s regulations requires that a copy of the petition:
... shall be personally served upon each named respondent, or, if a named respondent cannot be found upon a diligent search, by delivering and leaving the same at the respondent’s residence with some person of suitable age and discretion ...
The record indicates that petitioners failed to properly serve each named respondent. Petitioners attempted to effect service upon Centamore and Rosales solely by serving papers upon a “person of suitable age and discretion.” The affidavits of service, however, fail to demonstrate that petitioners made any diligent attempt to serve Centamore and Rosales personally before resorting to this method of substitute service. Therefore, service upon Centamore and Rosales was not made in compliance with the requirements of Commissioner’s regulation 275.8(a) and, thus, is improper as to both of them (Appeal of Houdek, 47 Ed Dept Rep 415, Decision No. 15,740; Appeal of Donnelly, 33 id. 362, Decision No. 13,079).
Similarly, service upon Lisa Brennan (“Brennan”), named in her capacity as district clerk, was improper. The affidavit of service states that a single attempt was made to serve Brennan at her office at 3:59 p.m. on June 20, 2014. At some unspecified point thereafter, the petition was delivered to a “secretary”. Respondents, however, state that the petition was not, in fact, delivered to a secretary but, rather, was delivered to the district’s assistant superintendent of business, who is not authorized to accept service on behalf of Brennan – nor any other named respondent or the board of education. An affidavit by Brennan is submitted in support of respondents’ assertion, and petitioners submit no reply in rebuttal.
There is no other indication that any attempt to personally serve Brennan was made. One attempt at service at Brennan’s office does not constitute a diligent effort to serve her personally (Appeal of Boni, 41 Ed Dept Rep 214, Decision No. 14,666; Boni, et al. v. Mills, et al., Sup. Ct., Albany Co., Special Term; Bradley, J.; January 7, 2003; judgment granted dismissing petition to review). Moreover, even if a diligent effort had been made, substituted service upon a co-worker in Brennan’s office is not permitted. Section 275.8 (a) of the Commissioners regulations requires that substituted service be made at a respondent’s residence (Application of Barton, 48 Ed Dept Rep 189, Decision No. 15,832). Service upon Brennan is, thus, improper.
With respect to Grunseich, the record indicates that service was not effected upon her at all. The affidavit of service submitted by petitioners merely avers “Attempted Service” upon Grunseich five times between June 20, 2014 and June 21, 2014. There is no proof that the petition was ever actually served upon her. Accordingly, the appeal must be dismissed for failure to properly effect service upon each named respondent.
The appeal must also 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The district’s annual meeting and election was held on May 20, 2014. Petitioners attempted to commence the appeal by serving the petition on June 20, 2014 and June 21, 2014 – albeit improperly - outside the required 30-day period. Petitioners offer no explanation for the delay. Consequently, the appeal is also untimely (Appeal of Gibbins and Byrnes, 49 Ed Dept Rep 367, Decision No. 16052).
The appeal must also be dismissed for failure to join 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).
As noted above, §275.8(d) of the Commissioner’s regulations requires that, where an appeal involves the validity of a school district election, a copy of the petition must be served upon the board of education. In addition to the clear requirements of §275.8(d), the interests of the district would be adversely affected by the outcome of this appeal. Thus, the Deer Park Board of Education is a necessary party.
Petitioners have failed to name the board of education as a respondent in the caption of the notice of petition and petition. The record also indicates that petitioners did not even attempt to serve the board of education. To the extent that service upon any individual respondent might be liberally construed to be an attempt to serve the board, such service is untimely and improper as set forth above. Petitioners’ failure to join the board of education as a respondent, thus, requires dismissal of the appeal (Appeal of Gibbins and Byrnes, 49 Ed Dept Rep 367, Decision No. 16052; Appeal of Walsh, 34 id. 544, Decision No. 13,405).
Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also a probability that any irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), were so pervasive that they vitiated the electoral process (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640). Implicit in these decisions is the recognition that it is a rare case where errors in the conduct of an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748; Appeal of Georges, 45 id. 453, Decision No. 15,380).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.; Appeal of Marchesani, 44 id. 460, Decision No. 15,232). And, mere speculation as to the effect of alleged irregularities provides an insufficient basis on which to annul election results (Appeal of Crawford, et al., 47 Ed Dept Rep 413, Decision No. 15,739; Appeal of Kudlack, 45 id. 272, Decision No. 15,319).
On this record, petitioners have not met their burden of proof. Petitioners’ allegations that irregularities occurred in connection with the May 20, 2014 election and proposition vote are largely conclusory in nature and are alleged primarily upon information and belief. Respondent has submitted an affidavit from the district clerk that rebuts petitioners’ various allegations of irregularities and petitioners have not submitted a reply. Moreover, petitioners provide no affidavits from any voter demonstrating that the alleged irregularities affected the outcome of the election or the vote on the proposition.
Petitioners ask for “an examination of the [May 20, 2014] election” and for “an examination of the Deer Park Board of Education policies for conducting elections”. 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).
On this record, I find that petitioners have failed to sustain their burden of proof and have not established any basis for overturning the results of the May 20, 2014 election and proposition vote.
THE APPEAL IS DISMISSED.
END OF FILE
 Although the district has not used the building as a school since 1989, it apparently had been used for other district, town and county purposes.
 Although the Board of Education of the Deer Park Union Free School District has appeared by its attorneys, it has not consented to jurisdiction or waived any jurisdictional defense.