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Decision No. 16,904

Appeal of KATHY L. SIDMORE from action of the Board of Education of the Belleville Henderson Central School District, Superintendent Rick T. Moore, District Clerk Sally A. Kohl, and board member Adam J. Miner regarding a school district election.

Decision No. 16,904

(May 6, 2016)

Office of Inter-Municipal Legal Services, attorneys for respondents, Dominic S. D’Imperio, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals certain conduct by the Board of Education of the Belleville Henderson Central School District (“respondent board”) in relation to the district’s May 19, 2015 school board election and seeks to overturn the election.  The appeal must be dismissed.

On May 19, 2015, the district held its annual election in which two candidates, petitioner and Adam J. Miner (“respondent Miner”), ran to fill one board vacancy.  The parties agree that respondent Miner received 207 votes while petitioner received 158 votes.  This appeal ensued.

While not entirely clear in her prayer for relief, the stated purpose of petitioner’s appeal is “to challenge the May 19, 2015... Election results.”  Petitioner alleges that board members engaged in conduct that “sought to exhort the electorate to support [r]espondent Miner by placing a sign at their residence entreating voters to ‘Elect Miner’.”  She further alleges that the district clerk, Sally A. Kohl (“respondent Kohl”), failed to file her oath of office within 30 days of her July 2014 appointment, thereby vacating her office as of August 13, 2014, and that, therefore, all business conducted by respondent board since her appointment is “called into question.”

Petitioner requests that I direct respondents to “refrain from advocating a partisan position with respect to matters that are the subject of a school district vote” and that I instruct respondents “as to the importance of filing their oath of office in a timely manner and the consequences of not doing so.”  Petitioner also asks that I “[g]rant[] [her] a seat on the [b]oard” if I determine the appeal to be meritorious.

Respondent contends that the petition should be dismissed for lack of jurisdiction because petitioner failed to join individual board members and the Commissioner lacks jurisdiction over alleged violations of the Public Officers Law’s oath of office requirement.  Respondent also contends that portions of the petition are untimely, and that the petition as a whole should be dismissed for failure to state a claim.  Finally, respondent objects to content of petitioner’s reply.

First, I will address the procedural matters.  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).  Therefore, while I have reviewed the reply, 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.

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).  However, with respect to appeals involving school district elections, I have held that it would be unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election (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 Maliha, 41 id. 367, Decision No. 14,716).  In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election (see 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 Maliha, 41 id. 367, Decision No. 14,716).

Respondent argues that certain campaign signs were actually placed prior to May 16, 2015, and therefore, any allegations or assertions of improper actions regarding the placement of those campaign signs are untimely.  Petitioner commenced this appeal by service upon respondents on June 15, 2015, within 30 days of the May 19, 2015 election.  Therefore, to the extent petitioner’s claims in this regard are closely related to the May 19, 2015 election, I decline to dismiss them as untimely (see Appeal of Oglesby, 51 Ed Dept Rep, Decision No. 16,311).

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).  The record indicates that in addition to serving named respondents Moore, Kohl, Miner and the board, petitioner also served the petition and notice of petition on the seven board members in office in June 2015, though none of the seven were named in the caption.  Nevertheless, while the petition does contain allegations relating to specific actions of individual board members, petitioner appears to attribute those actions to the board as a whole and she does not seek any relief as against those individual board members.  Rather, petitioner appears to allege that improper board conduct is a reason to overturn the election. Similarly, the allegations against respondent Kohl, although related to her failure to timely take and file the oath of office, appear to be related to petitioner’s request that the election be overturned.  The only party whose rights would be affected by a decision in petitioner’s favor is respondent Miner as he was the successful candidate from the election at issue.  Respondent Miner is named as a respondent in the caption and was served with a copy of the notice of petition and petition.  Therefore, I decline to dismiss the petition for failure to join necessary parties.

With respect to petitioner’s assertion that respondent Kohl failed to file her oath of office within 30 days of her July 2014 appointment, thereby vacating her office as of August 13, 2014, the claim must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

The law provides that public officers must take and file oaths of office with the district clerk (Public Officers Law §10). In the case of an appointive office, the failure to properly take and file an oath of office within 30 days after notice of appointment or the commencement of the term of office to which the officer is appointed causes the office to become vacant (Public Officers Law §30[1][h]).  The record indicates that respondent Kohl was reappointed and took the oath of office during respondent board’s July 1, 2015 reorganizational meeting.  Therefore, even if respondent Kohl had previously vacated her position by failure to comply with the Public Officers Law, her subsequent reappointment by respondent board, followed by the timely and proper filing of her oath of office, render petitioner’s claim moot (Appeal of Karpen, 39 Ed Dept Rep 98, Decision No. 14,185).

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).

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).

It is also well settled that 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).

A board of education may use public resources to present objective, factual information to the voters concerning a vote or election (Education Law §1716; Phillips v. Maurer, et al., 67 NY2d 672; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  However, while a board of education may disseminate information “reasonably necessary” to educate and inform voters, its use of district resources to distribute materials designed to “exhort the electorate to cast their ballots in support of a particular position advocated by the board” violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, et al., 67 NY2d 672; Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).

It is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Wallace, 46 Ed Dept Rep 347, Decision No. 15,529; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019).  Even indirect support, such as a school board giving a PTA access to its established channels of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Wallace, 46 Ed Dept Rep 347, Decision No. 15,529; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019).

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).

Petitioner asserts that the conduct of individual board members, in placing campaign signs at certain residences, undermined a “fair and evenhanded election” by “sway[ing] district residents who have farming interests and those who had elected said [b]oard members to office.”  Additionally, she argues that a “board of education cannot persuade, or convey favoritism, partisanship, partiality, or approval of any candidate.”

Petitioner has failed to meet the standard set forth above.  The petition is devoid of any allegations or facts that public funds were used to purchase or place the campaign signs.  Indeed, petitioner concedes “there is no belief school district funds were used” in this regard.  Moreover, to the extent petitioner intends to argue that respondent Kohl’s failure to file her oath of office within 30 days is grounds to overturn the election results; I find no merit in such claim.  Public Officers Law §15 provides that where a public officer performs his or her duties without taking or filing the required oath the acts so performed “shall be as valid and of as full force and effect as if such oath had been duly taken and filled....”

Petitioner sets forth no details or evidence that any the aforementioned conduct constituted an election irregularity that affected the outcome of the election, or was otherwise improper.  Therefore, she has failed to meet her burden.

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

THE APPEAL IS DISMISSED.

END OF FILE