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Decision No. 16,768

Appeal of BEVERLY RIVERA, RENEE ORTIZ, MARY FINNIN, and EDWARD DRUMMOND, from action of Norman Wagner, Denise Ridgeway, Dr. Craig Carr, and Kevin A. Seaman, Esq., regarding a school district election and budget vote.

Decision No. 16,768

(June 12, 2015)

Kevin A. Seaman, Esq., attorney for respondents

BERLIN, Acting Commissioner.--Petitioners challenge the results of the Board of Education of the Central Islip Union Free School District’s (“board” or “district”) May 20, 2014 school district election and action of elected board member Norman Wagner, district clerk Denise Ridgeway, superintendent Dr. Craig Carr, and school district attorney Kevin A. Seaman, Esq. (collectively “respondents”), regarding the election and budget vote.  The appeal must be dismissed.

On May 20, 2014, the district held its annual school board election and budget vote.  Six candidates sought to fill three vacancies on the board of education, for three-year terms commencing July 1, 2014.  The record indicates that the three candidates elected to positions on the board were Michele Harriot (902 votes); respondent Wagner (889 votes); and Edna Carbajal (808 votes).  Additionally, the voters approved the budget for the 2014-2015 school year, with 894 votes in favor of the budget and 478 votes against the budget. 

Petitioners challenge the results of the election and allege several irregularities with regard to the conduct of the May 20, 2014 election and budget vote.  Petitioners allege that respondents violated Board Policy #2121, entitled “Board Member Qualifications,” and Education Law §2103, by allowing respondent Wagner, the district’s Facilities Manager through June 30, 2014, to submit a nominating petition establishing his candidacy for the board election.  Petitioners also assert that respondent Ridgeway, the district clerk, inappropriately invalidated all submitted absentee ballots on May 12, 2014, and required voters to re-submit absentee ballots eight days before the election.  Petitioners allege that “questionable discrepancies” exist with regard to the May 20, 2014 election and budget vote, including that some voters were listed multiple times; some lists were “blackened out”; some inspectors were observed using their cell phones; voters who own property in Central Islip but live in other districts are on the roster as having voted; multiple voters are listed with only a first name; and multiple entries on the roster are illegible.

Petitioners ask that Policy #2121 “be upheld for the 2014 election” and that respondent Wagner “be declared unqualified to run as a candidate and his election be nullified.”  Petitioners also request reversal of “decisions” made by respondents Carr, the district’s superintendent, and Seaman, the district’s attorney, and that respondent Ridgeway “be reprimanded for her poor judgments.”

Respondents assert that the petition should be dismissed for failure to join necessary parties as respondents in the appeal.  Respondents maintain that the appeal is untimely and is also barred by laches.  Respondents also assert that the petition fails to state a cause of action.  They request certificates of good faith pursuant to Education Law §3811.  Finally, respondents object to petitioners’ papers submitted in reply to respondents’ opposition to petitioners’ request for interim relief. 

I must first address several procedural issues.  Petitioners submit a document entitled “Petitioner’s [sic] Combined Response to Respondent’s [sic] Affidavit and Affirmation in Support of the Disqualification of Norman Wagner as a Trustee-Elect” in response to respondents’ opposition to petitioners’ request for interim relief, along with a request that such document be considered pursuant to 8 NYCRR §276.5.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Therefore, while I have reviewed the document, I have not considered those portions containing new allegations or exhibits.

To the extent petitioners seek to overturn the results of the May 20, 2014 election, the appeal must be dismissed.  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).

As described above, petitioners challenge alleged irregularities in the conduct of the May 20, 2014 school board election – including the alleged “decisions” made by respondents Carr and Seaman[1] – and, as relief, ask that I nullify the results of the May 20, 2014 election.  A decision in petitioners’ favor would affect the three winning candidates: respondent Wagner, Michele Harriot, and Edna Carbajal.  Consequently, they are necessary parties to the appeal (see Appeal of Carey, 52 Ed Dept Rep, Decision No. 16,435; Appeal of Kelty, 51 id., Decision No. 16,325; Appeal of Greene and Moss, 50 id., Decision No. 16,210; Appeal of Watson, 50 id., Decision No. 16,181).  However, Michele Harriot and Edna Carbajal are not named as respondents in the caption of the petition.  Further, the record indicates that only Wagner was served with a copy of the petition and notice of petition.  Moreover, the appeal involves the validity of a school district election, yet the board is not named as a party and was not served with a copy of the petition and notice of petition (see 8 NYCRR §275.8[d]).  Because petitioners did not properly join the necessary parties, their challenge of the election results must be dismissed (see e.g. Appeal of Cooke, et al., 54 Ed Dept Rep, Decision No. 16,759).

Further, petitioners’ claims concerning the submission and acceptance of Wagner’s nominating petition 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioners claim that respondent Wagner violated Policy #2121 and Education Law §2103 when he submitted and the clerk accepted his nominating petition and that the district clerk failed to uphold Policy #2121 by accepting such petition.  The record indicates that respondent Wagner submitted his nominating petition on April 21, 2014.  Assuming arguendo that Wagner was ineligible to be a board candidate at the time he submitted his nominating petition, and that the district clerk improperly accepted Wagner’s nominating petition, petitioners would be aggrieved when the petition was accepted by the clerk on April 21, 2014 (see Appeal of Zlotnick and Hartman, 53 Ed Dept Rep, Decision No. 16,589; Appeal of Grant, 42 id. 184, Decision No. 14,816; Appeals of Campbell, et al., 41 id. 207, Decision No. 14,665; Appeal of Leman and Roujansky, 32 id. 579, Decision No.12,919).[2]  Moreover, the petition acknowledges that “this action was not commenced within 30 days that the first occurrence was known of Respondent Wagner’s submission of petitions” on April 21, 2014. According to the affidavits of service, petitioners served a verified petition on respondents on June 9, 2014, more than 30 days after respondent Wagner’s nominating petition was accepted by the clerk. 

Petitioners request a “waiver” of the 30-day period on the grounds that, “on or about April 14, 2014 Petitioners brought their concerns [regarding Wagner’s eligibility] to district officials, and in good faith, waited for Respondent Seaman to render his opinion as General Counsel” which he rendered on May 12, 2014.  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  Moreover, a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).  I find no unusual circumstances sufficient to excuse the delay in this instance, especially in light of petitioners’ own assertions that they had “concerns” regarding Wagner’s eligibility as early as April 14, 2014.  Therefore, with respect to the claims regarding respondent Wagner’s nominating petition, the appeal must be dismissed as untimely. 

Petitioners’ claims against superintendent Carr must also be dismissed as untimely.  Petitioners assert that Carr failed to thoroughly research Policy #2121 and nonetheless recommended adoption of the policy in 2009, which was later determined to be in conflict with law.  According to the record, Policy #2121 was adopted on February 9, 2009.  Therefore, petitioners’ claims pertaining to respondent Carr are untimely.  

Finally, to the extent petitioners ask that I reprimand respondent Ridgeway, the district clerk, “for her poor judgments,” I note that there is no provision in the Education Law to authorize the reprimand of district staff by the Commissioner of Education (see Appeal of Kozak, 39 Ed Dept Rep 278, Decision No. 14,237; Appeal of Kane, 34 id. 116, Decision No. 13,251; Appeal of Silano, 33 id. 20, Decision No. 12,961).

Although the appeal must be dismissed, I note that the record in this case indicates that confusion may exist regarding Policy #2121 and the district’s interpretation thereof.  I therefore encourage the district to review and revise such policy, as necessary, to clarify the qualifications of board members consistent with the applicable provisions of Education Law.

In light of this disposition, I need not address the parties’ remaining contentions; however, one administrative matter remains.  Respondents have requested that I issue them certificates of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify the individual respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties.  It is appropriate to issue such certification unless it is established on the record that the requesting party acted in bad faith (Application of Schenk, 47 Ed Dept Rep 375, Decision No. 15,729; Application of Lilly, 47 id. 307, Decision No. 15,705; Application of Berman, 46 id. 378, Decision No. 15,537).  In view of the fact that there has been no finding that the individual respondents acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that they are entitled to receive the requested certificate.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] To the extent petitioners challenge decisions made by respondent Seaman, I note that such decisions are not actionable in the context of an appeal commenced pursuant to Education Law §310 because he is neither an officer nor an employee of the district (see Appeal of Philips, 41 Ed Dept Rep 10, Decision No. 14,595; Matter of McGinley, 23 id. 350, Decision No. 11,244).  Accordingly, Education Law §310(7) does not provide for personal jurisdiction over respondent Seaman (see Matter of McGinley, 23 Ed Dept Rep 350, Decision No. 11,244).

 

 

[2] I note that, in Appeal of Roy (31 Ed Dept Rep 497, Decision No. 12,713), where eligibility of an elected board member was at issue, the Commissioner found that the time to initiate the appeal began to run when the candidate’s name actually appeared on the ballot.  However, in Roy, petitioner did not contest the submission of the candidate’s nominating petition.  Rather, petitioner appealed from respondent board of education’s failure to address the question of the candidate’s residency when it removed the matter from its meeting agenda and its subsequent inclusion of his name on the ballot as a candidate for election to the board of education.  In the instant appeal, unlike Roy, petitioners claim to be aggrieved by Wagner’s submission of his nominating petition.