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Decision No. 17,071

Appeal of RODNEY A. CAINES from action of the Board of Education of the Westbury Union Free School District, Pedro A. Quintanilla, Tania Stamp, Rodney Caines, Jan F. Figueira, Sherley Cadet, Laura L. Pierce, Leslie F. Davis, Stanton L. Brown, and Perelene K. Perpall, regarding an election.

Decision No. 17,071

(April 6, 2017)

                            

Frazer & Feldman, LLP, attorneys for respondents Board of Education of the Westbury Union Free School District, Pedro A. Quintanilla, Sherley Cadet, and Stanton L. Brown, Laura A. Ferrugiari, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the Westbury Union Free School District (“respondent” or “board”) regarding the district’s school board election and subsequent appeal pursuant to Education Law §310.  The appeal must be dismissed.

On May 17, 2016, respondent board held its annual budget vote and election to fill three vacant board seats, each for a term of three years.  Nine candidates, including petitioner, were listed on the ballot.  The district is divided into election districts with four polling locations: Drexel Avenue School (“Drexel”); Park Avenue School (“Park”); Dryden Street School (“Dryden”); and Westbury Middle School (“middle school”).  The results from the four polling places were tallied at respondent’s middle school as follows:

Pedro A. Quintanilla    843

Stanton L. Brown        774

Rodney Caines           718

Sherley Cadet           716

Leslie F. Davis         656

Laura L. Pierce         633

Perelene K. Perpall     191

Tania Stamp             168

Jan F. Figueira         141

In addition, six affidavit ballots were submitted during the election, and on May 19, 2016, the board passed a resolution appointing a Central Board of Registration to review and process the affidavit ballots.  On May 27, 2016, the Central Board of Registration met and canvassed five of the six affidavit ballots and added the votes to the tally.  Petitioner received one additional vote and Cadet received three additional votes, resulting in a tie of 719 votes each. 

On June 1, 2016, the board held a special meeting during which it discussed the one affidavit ballot which had not yet been canvassed.  The board was presented with evidence from the affiant that he was properly registered to vote in the district.  As such, the board voted to accept and canvass the sixth affidavit ballot, which contained votes in favor of Quintanilla, Cadet, and Brown. The board unanimously accepted the final vote tally as follows:

Pedro A. Quintanilla    848

Stanton L. Brown        779

Sherley Cadet           720

Rodney Caines           719

Leslie F. Davis         657

Laura L. Pierce         634

Perelene K. Perpall     191

Tania Stamp             169

Jan F. Figueira         141

In addition, the board approved a motion to commence an appeal pursuant to Education Law §310 to seek a recount of the votes cast in the election and budget vote. 

On or about June 13, 2016, the board commenced an appeal pursuant to §310 of the Education Law (Appeal No. 20462), seeking the following:  (1) a recount of the ballots for petitioner and Sherley Cadet from the May 17 election; (2) permission to canvass one absentee ballot which was not canvassed; (3) interim relief staying the seating of Sherley Cadet pending a final determination on the merits; and (4) an order allowing petitioner Caines to hold over on the board pending a final determination on the merits. 

By order dated June 27, 2016 in Appeal No. 20462, Acting Commissioner Elizabeth Berlin ordered that the board be stayed from swearing in Sherley Cadet as a member of the board.  The order also referenced the holdover provision in Public Officers Law §5.

On July 1, 2016, board members Quintanilla and Brown were sworn in as members of the board.

At respondent board’s July 5, 2016 meeting, the board passed a resolution to withdraw Appeal No. 20462, and subsequently notified my Office of Counsel of such action.  On July 7, 2016, my Office of Counsel confirmed that the board’s request to discontinue Appeal No. 20462 had been granted. 

On July 7, 2016, board member-elect Cadet was sworn in as a member of the board, and at a board meeting on July 14, 2016, Cadet was sworn in before the public.  This appeal ensued.   Petitioner’s request for interim relief was denied on August 26, 2016.

Petitioner asserts that it is impossible to discern the true results of the election due to numerous discrepancies with regard to absentee ballots and the tallying of votes.  Specifically, petitioner claims that, “[u]pon information and belief, there are discrepancies between the final tabulation sheet relied upon by the Board and the numbers provided at each polling place.”   Petitioner also contends that it would be “impossible to ascertain the exact count, but it appears that the number of absentee ballots attributed to Dryden is actually the number of absentee ballots that were cast at the Middle School, resulting in the Middle School absentee ballots being counted twice in the final tabulation.”  Further, petitioner claims that “it appears that the absentee ballots from Dryden were included in the machine tally for that polling place.”  Petitioner asserts that Drexel used a tally sheet which is “marked inconsistently” and it is “impossible to ascertain accurate vote totals.”  Petitioner seeks an order reversing the board’s withdrawal of its petition served on or about June 13, 2016, thus reinstating the board’s petition.  Alternatively, petitioner seeks an order to hold a recount of the ballots cast for petitioner and Sherley Cadet. 

Respondents assert that the appeal must be dismissed as moot and untimely; for lack of standing; for lack of proper verification; for failure to serve all necessary parties; and for failure to file the petition and supporting papers with my Office of Counsel within five days after service.  Respondents further argue that the petition fails to state a claim for which relief may be granted and that petitioner failed to carry his burden of establishing the facts upon which he seeks relief.

I must first address the procedural issues.  First, respondents assert that the petition lacks verification. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  However, I note that the copy filed with my Office of Counsel does contain an affidavit of verification sworn to by petitioner on July 22, 2016.  I therefore decline to dismiss the petition on this basis (see Appeal of D.F. and N.F., 56 Ed Dept Rep, Decision No. 17,026).

To the extent petitioner challenges the outcome of the election, the appeal is 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).  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).  The record indicates that none of the respondents were served within 30 days of the May 17, 2016 election.  The appeal is therefore untimely to the extent petitioner challenges the outcome of the election (see e.g., Appeal of McDonough, 54 Ed Dept Rep, Decision No. 16,752).  However, to the extent petitioner challenges the board’s July 5, 2016 resolution to withdraw Appeal No. 20462, I decline to dismiss the appeal as untimely.

Petitioner asserts that he did not commence this appeal until after the board withdrew Appeal No. 20462 because he believed that the board was acting in his “same interest.”  However, 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, petitioner’s proffered excuse is belied by the evidence in the record indicating that he made the motion on June 1, 2016 to accept and canvass the sixth affidavit ballot and seconded the motion to withdraw Appeal No. 20462 on July 5, 2016.

To the extent petitioner challenges the board’s action with respect to the election and subsequent withdrawal of Appeal No. 20462, the appeal must also be dismissed for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  The record indicates that, on July 22, 2016, petitioner attempted service on respondent board by serving “Mary Ann Knabbe, district superintendent administrative assistant.”  An administrative assistant for the superintendent is not one of the individuals designated to accept service on behalf of a school district pursuant to 8 NYCRR §275.8(a).  According to respondents, Ms. Knabbe has not been officially designated by the board to accept service on its behalf.  Petitioner did not submit a reply or other evidence to refute respondents’ contention.  When there is no proof that an individual is authorized to accept service on behalf of the school board or superintendent, service on that individual is improper and the appeal must be dismissed (Appeal of J.S. and D.S., 55 Ed Dept Rep, Decision No. 16,821; Appeal of Costanzo, 48 id. 289, Decision No. 15,860).  Because the petition was not served on the district clerk, a member of the board of education, the superintendent, or a designee in the office of the superintendent, there was no valid service of process and the Commissioner does not have jurisdiction over this appeal (Appeal of J.S. and D.S., 55 Ed Dept Rep, Decision No. 16,821; Appeal of Henley, 46 id. 556, Decision No. 15,594; Appeal of Sailsman, 45 id. 61, Decision No. 15,260).  

In addition, although Sherley Cadet and Perelene Perpall are named as respondents, the petition must also be dismissed as to them for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations provides:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers ... shall be personally served upon each named respondent, or, if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion between six o’clock in the morning and nine o’clock in the evening ... (emphasis added).

The affidavit of service for Cadet indicates that, on July 21, 2016, a process server attempted to serve Cadet by “delivering to and leaving with the mother of Sherly [sic] Cadet at approximately 7:40 pm.”  Likewise, the affidavit of service for Perpall indicates that, on July 28, 2016, a process server attempted to serve Perpall by “delivering to and leaving with Mrs. Perpall’s son ... at 8:08 pm.”  However, as discussed above, Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent and there is no indication in the record before me that petitioner made a diligent search to locate either Cadet or Perpall before leaving the notice and petition with their family members (see Appeal of Pavacic, 32 Ed Dept Rep 135, Decision No. 12,783).  No request was made by petitioner to the Commissioner for alternate service (see Application of Barton, 48 Ed Dept Rep 189, Decision No. 15,832; Application of Ayers, 48 id. 350, Decision No. 15,883). Accordingly, service was defective in this regard.

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 alternate relief, petitioner seeks a recount of the ballots cast at the May 17, 2016 election, which would adversely affect the rights of all successful board candidates, including Sherley Cadet.  Although Cadet is named in the caption, she was not properly served with a copy of the petition.  Therefore, the appeal must be dismissed for failure to join her as a necessary party.

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

THE APPEAL IS DISMISSED.

END OF FILE