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Decision No. 16,896

Appeal of CHRISTIAN D’ANGELO from action of the Board of Education of the Lindenhurst Union Free School District regarding an election.

Decision No. 16,896

(April 11, 2016)

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

ELIA,  Commissioner.--Petitioner appeals certain conduct related to an election held by the Board of Education of the Lindenhurst Union Free School District (“respondent” or “board”) on May 19, 2015.  The appeal must be dismissed.

On May 19, 2015, respondent held its annual election to fill three seat-specific board vacancies.  The first seat was for board president, for which incumbent Donna Hochman ran unopposed.  The second seat was for board vice president, for which incumbent Mary Ellen Cunningham received 1,253 votes and defeated Victoria Vine, who received 825 votes.  The third seat was for an incumbent not seeking reelection, for which Kevin Garbe received 1,372 votes and defeated Todd Lemieux, who received 793 votes.

Petitioner does not challenge the results of the election.  Instead, he raises concerns about a direct mail advertisement (“mailer”) received by some residents prior to the election.  The mailer is titled: “Lemieux & Vine Two bad apples” and, among other things, it states that both candidates are not qualified to be on the board.  Petitioner argues that the statements on the mailer are “false, misleading and potentially libelous.”  Petitioner claims that the mailer caused “uproar” in the community and alleges that it may have been a contributing factor to lower than expected voter turnout.

The record does not indicate who sent the mailer.  It does not have a return mailing address and reads “Lindenhurst School Board Election Tuesday, May 19th” where the sender information is usually listed.  The petition is devoid of any allegations that respondent was responsible for the mailer, although petitioner states that accusations against respondent were made on social media.  Petitioner does allege that the members of the board “potentially have failed to uphold their duties of office by conducting due diligence and investigating the source of the anonymous mailer.”

In petitioner’s request for relief, he makes several requests for investigations.  For example, he asks that I order my Office of Counsel to take immediate action to identify the source of the anonymous mailer and that the New York State Education Department (“Department”) order an audit of all candidates’ campaign financial disclosures.  He requests that the Department investigate possible involvement by past and current board members and that, if a board member is found to have participated in any wrongdoing, that he or she be removed from office.  He also asks that the person or entity responsible for the mailer be prosecuted to the fullest extent of the law.  Finally, petitioner seeks clarification as to whether he and his family are protected under New York State Whistleblower Protection Laws.

Respondent argues that petitioner lacks standing, has failed to state a claim upon which relief may be granted and that the appeal is moot.  Respondent further argues that I lack subject matter jurisdiction over certain claims and the authority to grant the requested relief.

Respondent contends that petitioner lacks standing to maintain this appeal because he has not suffered any personal damage or injury to his civil, personal, or property rights.  However, petitioner asserts that he is a district resident and a taxpayer.  A person’s status as a district resident is sufficient to maintain an appeal with respect to the conduct of an election (see Appeal of Reese, et al., 49 Ed Dept Rep 328, Decision No. 16,044).  However, to the extent petitioner attempts to assert the rights of others, he lacks standing to do so (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).

To the extent petitioner seeks removal of individual board members, 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).  Petitioner requests that, if any board member is found to have participated in any wrongdoing, that he or she be removed from office.  However, no individual board members are named in the caption of this proceeding and petitioner has not submitted an affidavit of service indicating that any individual board members were served.  Moreover, the notice of petition does not state that the removal of any person is sought, as required by §277.1 of the Commissioner’s regulations.  Thus, to the extent petitioner seeks the removal of individual board members, the appeal must be dismissed for failure to join necessary parties (see e.g. Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920).

To the extent petitioner requests that I order investigations, 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).  Moreover, to the extent petitioner seeks clarification as to whether he, his wife and his children would be protected under “New York State Whistleblower Protection Laws” in the event of retaliation by respondent, petitioner fails to specify which law he references and it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

With respect to petitioner’s request that I order an audit of certain candidates’ expenditure statements, I note that, pursuant to Education Law §1530, enforcement of the filing requirements set forth in Article 32 of the Education Law is by means of a proceeding instituted in the Supreme Court of the State of New York, and is therefore outside the jurisdiction of the Commissioner of Education (Education Law §1530; Appeal of the Board of Education of the Hempstead Union Free School District, 55 Ed Dept Rep, Decision No. 16,878; Appeal of Reese, et al., 49 id. 328, Decision No. 16,044; Appeal of Johnson, et al., 45 id. 320, Decision No. 15,334; Appeal of Donnelly, 33 id. 362, Decision No. 13,079).  Similarly, to the extent petitioner requests that the Department “prosecute, to the fullest extent of the law” the individual or entity responsible for the mailing, the Commissioner lacks jurisdiction in appeals brought pursuant to Education Law §310 to institute criminal proceedings (see Education Law §§310; 311).

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

THE APPEAL IS DISMISSED.

END OF FILE